United States v. Holmes-Mateo

89 F. App'x 654

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 15, 2004
• Docket: No. 03-10167; D.C. No. CR-02-01264-SMM
• Status: Published

Opinion

MEMORANDUM

*

Defendant Raul Edgardo Holmes-Mateo appeals his sentence for illegal re-entry after deportation, in violation of 8 U.S.C. § 1326. The district court granted a three-level downward departure for cultural assimilation and applied a three-level downward adjustment for acceptance of responsibility but declined to depart downward for savings to the government. It is the last of those rulings that Defendant seeks to challenge here. We dismiss the appeal for lack of jurisdiction.

The district court recognized that, despite the fact that Defendant had declined to enter into a “fast-track” plea agreement with the government, the court retained the discretion whether to grant Defendant a downward departure for savings to the government. See United States v. Rodriguez-Lopez, 198 F.3d 773, 775-76 (9th Cir. 1999). In its written submission to the court before sentencing, the government agreed with Defendant that the court had such discretion, but urged the court for various reasons to “exercise its discretion not to depart.” Although the court’s oral remarks did not acknowledge in so many words that the court knew of its discretion to depart, an explicit recitation is not required. United States v. Webster, 108 F.3d 1156, 1158-59 (9th Cir.1997). The district court’s remarks taken as a whole, and in context, show that the court knew of and exercised its discretion. We therefore lack jurisdiction to review the court’s decision. Id. at 1158.

APPEAL DISMISSED.

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