United States v. Lopez-Garfias

52 F. App'x 78

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 5, 2002
• Docket: No. 01-30332; D.C. No. CR-01-02010-EFS
• Status: Published

Opinion

MEMORANDUM

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Juan Jose Lopez-Garfias, a federal prisoner, challenges his 46-month sentence imposed following his guilty plea conviction for illegal reentry after deportation in violation of 8 U.S.C. § 1326. We dismiss.

Lopez-Garfias challenges his sentence on the sole ground that the district court erred in refusing to grant his request for downward departure on the basis of cultural assimilation. The district court did not comment on its reasoning for deciding not to depart on that ground. When the district court is silent with respect to its refusal to depart, but declined to do so, we presume that the district court knew it had the authority to depart. United States v. Garcia-Garcia, 927 F.2d 489, 491 (9th Cir.1991). Therefore, the district court’s decision was a discretionary refusal to depart that we do not have jurisdiction to review. Id.

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.