United States v. Lupercio-Olivares

83 F. App'x 226

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 15, 2003
• Docket: No. 03-10292; D.C. No. CR-02-05401-AWI
• Status: Published

Opinion

MEMORANDUM

**

Francisco Lupercio-Olivares appeals the 30-month sentence imposed following his guilty-plea conviction for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and we affirm.

Lupercio-Olivares contends that the district court erred by imposing a sentence consecutive to the undischarged term of his state sentence pursuant to United States Sentencing Guidelines § 501.3(a). The district court acknowledged it had the discretion to run the sentence concurrent to his state sentence pursuant to § 501.3(c), but declined to do so after considering the appropriate factors. See U.S.S.G. § 5G1.3, cmt. n. 3.; United States v. Kim, 196 F.3d 1079, 1084 (9th Cir.1999).

Lupercio-Olivares also contends that the district court erred by refusing to downwardly depart. Because the district court considered the request, but declined to exercise its discretion, we lack jurisdiction to consider the issue. See United States v. Garcia-Garcia, 927 F.2d 489, 491 (9th Cir. 1991).

AFFIRM.

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.