United States v. Darnell Earl Johnson

17 F.3d 397, 1994 U.S. App. LEXIS 9670, 1994 WL 47972

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 17, 1994
• Docket: 93-30282
• Status: Published

Opinion

17 F.3d 397
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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.
Darnell Earl JOHNSON, Defendant-Appellant.

No. 93-30282.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 7, 1994.*
Decided Feb. 17, 1994.

Before: SCHROEDER, CANBY, and WIGGINS, Circuit Judges.

MEMORANDUM**

Darnell Earl Johnson appeal his 108-month sentence imposed following entry of his guilty plea to three counts of distributing cocaine in violation of 21 U.S.C. Sec. 841(a)(1). Johnson contends the district court erred by failing to grant a downward departure based upon Johnson's childhood neglect and "sentencing factor manipulation." We dismiss the appeal.

A district court's discretionary refusal to depart downward from the Guidelines is not reviewable on appeal. United States v. Belden, 957 F.2d 671, 676 (9th Cir.), cert. denied, 113 S.Ct. 234 (1992). "Failure to depart without comment on the authority to do so does not convert a discretonary departure into a sentence imposed in violation of law." United States v. Garcia-Garcia, 927 F.2d 489, 490 (9th Cir.1991) (per curiam).

At sentencing, Johnson argued that the district court should depart downward based upon Johnson's youthful lack of guidance and because the government manipulated the length of his sentence by having the confidential informant request cocaine base rather than powered cocaine hydrochloride and by controlling the number of sales. The district court stated that it had "carefully considered all the facts" relating to the case but declined to depart from the Guideline range. The district court's Findings of Fact Order included the statement that "[i]n its exercise of its discretion, the district court declines to depart downward."

Because the district court exercised its discretion when refusing to depart downward, we lack jurisdiction to review the refusal. See Belden, 957 F.2d at 676. Accordingly, the appeal is DISMISSED.

* The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4. Accordingly, Johnson's request for oral argument is denied

** 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