United States v. Gonzalez-Huerta

95 F. App'x 249

Opinion

MEMORANDUM **

Javier Gonzalez-Huerta appeals the 46-month sentence imposed following his guilty-plea conviction for use of a communications facility to facilitate the illegal possession and distribution of pseudoephedrine, in violation of 21 U.S.C. § 843(b). We dismiss.

Gonzalez-Huerta contends the district court applied an incorrect legal standard when it denied his request for a downward departure under U.S.S.G. § 5K2.13, based on his reduced mental capacity. The record does not support Gonzalez-Huerta’s contention. The sentencing transcript indicates that the district court expressly referred to the applicable sentencing guideline after considering extensive testimony and argument regarding Gonzalez-Huerta’s mental and emotional state, and concluded that there was not sufficient evidence to support a mental capacity departure. In such cases, we do not review the district court’s discretionary refusal to grant a defendant’s request for departure. See United States v. Davis, 264 F.3d 813, 815 (9th Cir.2001).

DISMISSED.

Footnotes

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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.