United States v. Jose Menjares-Carranza

73 F.3d 371, 1995 U.S. App. LEXIS 40856, 1995 WL 765977

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 29, 1995
• Docket: 95-50263
• Status: Published

Opinion

73 F.3d 371
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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.
Jose MENJARES-CARRANZA, Defendant-Appellant.

No. 95-50263.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 19, 1995.*
Decided Dec. 29, 1995.

Before: SNEED, TROTT, and HAWKINS, Circuit Judges.

MEMORANDUM**

Jose Menjares-Carranza appeals his sentence under the Sentencing Guidelines for his conviction of being an alien found in the United States following deportation and conviction in violation of 8 U.S.C. Sec. 1326(a)(b)(1). Menjares-Carranza contends the district court erred in not recognizing its discretion to depart downward from his sentencing range.

Where a district judge indicates that "even if he had the authority to depart, there were no facts to justify departing downward," such a finding constitutes a discretionary refusal to depart, and this court is without jurisdiction to review it. United States v. Williams, 898 F.2d 1400, 1403 (9th Cir.1990). In this case, the district court recognized its discretion to depart when it stated at the sentencing hearing: "I have considered your grounds for a downward departure. Each of them is rejected singularly and in totality. And let me also make the finding that if any of these are justified bases for a downward departure, and I don't think they are either singularly or in totality, I would not exercise my discretion under these facts to downward depart." Accordingly, we lack jurisdiction to review the district court's decision not to depart downward. Id.

DISMISSED.

* The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

** 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