United States v. Divine

104 F. App'x 689

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 16, 2004
• Docket: No. 03-30457. D.C. No. CR-03-00241-TSZ
• Status: Published

Opinion

MEMORANDUM

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Steven Wayne Divine appeals the 33-month sentence imposed following his guilty plea to bank fraud, in violation of 18 U.S.C. § 1344, and uttering fictitious obligations, in violation of 18 U.S.C. § 514(a)(1) and (2).

Divine contends that the district court erred by concluding that it lacked discretion to depart under U.S.S.G. § 5K2.13 for significantly reduced mental capacity, because it misinterpreted that provision to apply only to cognitive impairments. We disagree with Divine’s contention. It is apparent from the record that the court was aware of its authority to depart on the permissible grounds offered by Divine, but declined to do so. Absent some indication that the district court believed it lacked authority to depart, this court may not review the district court’s discretionary refusal to depart downward. See United States v. Webster, 108 F.3d 1156, 1158-59 (9th Cir.1997).

DISMISSED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.