United States v. Benjamin Velasquez

26 F.3d 135, 1994 U.S. App. LEXIS 21552, 1994 WL 259759

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 14, 1994
• Docket: 93-50775
• Status: Unpublished

Opinion

26 F.3d 135

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
v.
Benjamin VELASQUEZ, Defendant-Appellant.

No. 93-50775.

United States Court of Appeals, Ninth Circuit.

Submitted June 6, 1994.*
Decided June 14, 1994.

Before: TANG, PREGERSON, and T.G. NELSON, Circuit Judges.

MEMORANDUM**

Benjamin Velasquez appeals the 488-month sentence imposed after he pleaded guilty to two counts of armed bank robbery and two counts of using a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. Secs. 2113(a)(d) and 924(c). Velasquez contends that the district court erred by refusing to depart downward from the applicable Sentencing Guideline range under the rationale articulated in United States v. Whitehorse, 909 F.2d 316 (8th Cir.1990). We dismiss this appeal for lack of jurisdiction.

"We lack jurisdiction to review the district court's discretionary decision not to depart downward." United States v. Burnett, 16 F.3d 358, 361 (9th Cir.1994) (citations omitted). Moreover, we lack jurisdiction to review "a district court's determination that it has no authority to depart when the district court indicates it would not depart, even if it had the authority to do so." Id. (citing United States v. Williams, 898 F.2d 1400, 1403 (9th Cir.1990)).

Here, the district court stated:

I think it's a stretch to get this case under the ... theory of Whitehorse, if it gets under there at all.

But even assuming that this case would qualify for a downward departure under the Whitehorse case, I decline to exercise my discretion to grant a downward departure in the circumstances of this case. I really don't think Mr. Velasquez's circumstances are comparable either in kind or degree to that shown in [Whitehorse ]. So assuming I have the right under Whitehorse to depart, I decline to exercise that discretion.

Because the district court exercised its discretion in refusing to depart downward from the applicable Sentencing Guideline range, we lack jurisdiction over Velasquez's appeal. See Burnett, 16 F.3d at 361.

DISMISSED.

* The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3