United States v. Garcia-Tellez

111 F. App'x 528

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 25, 2004
• Docket: No. 04-30106; D.C. No. CR-03-00167-EJL
• Status: Published

Opinion

MEMORANDUM

**

Raul Garcia-Tellez appeals the 37-month sentence imposed following his guilty-plea conviction for illegal reentry after deportation in violation of 8 U.S.C. § 1326. The stay imposed by earlier order on this appeal is hereby lifted, and we dismiss.

Garcia-Tellez contends that the district court illegally denied his request for a downward departure because its alleged sentencing policy of denying departures to defendants with multiple prior deportations prevented an adequate consideration of his personal characteristics and circumstances or an explicit consideration of each of the grounds he presented for departure.

The record in this case, however, reflects that the district court gave due consideration to the motions for downward departure, the pre-sentence report, the letters and photographs submitted by family members, the argument of counsel, and Garcia-Tellez’ statement to the court before denying the motions for downward departure. Because the record also reflects that the district court recognized its authority to depart downward, we lack jurisdiction to review its discretionary refusal to do so. See United States v. Campos-Fuerte, 357 F.3d 956, 961 (9th Cir.2004).

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.