United States v. Lynn Arthur Jarrett

5 F.3d 542, 1993 U.S. App. LEXIS 30738, 1993 WL 332078

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 1, 1993
• Docket: 93-50033
• Status: Published

Opinion

5 F.3d 542
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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.
Lynn Arthur JARRETT, Defendant-Appellant.

No. 93-50033.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 23, 1993.*
Decided Sept. 1, 1993.

Appeal from the United States District Court for the Central District of California, No. CR-92-00789-ER; Edward Rafeedie, District Judge, Presiding.

C.D.Cal.

DISMISSED.

Before: PREGERSON, BRUNETTI and RYMER, Circuit Judges.

MEMORANDUM**

Lynn Arthur Jarrett appeals his sentence imposed following his guilty plea to unarmed bank robbery in violation of 18 U.S.C. Sec. 2113(a). Jarrett contends that the district court erred by refusing to depart downward from the applicable United States Sentencing Guidelines range because it failed to recognize that it had discretion to do so based upon the overrepresentation of Jarrett's criminal history. We dismiss the appeal.

A district court's discretionary refusal to depart downward is not reviewable on appeal. United States v. Robinson, 958 F.2d 268, 272 (9th Cir.1992).

At sentencing, Jarrett argued that the district court should depart downward because his criminal history status was overrepresented. The district court rejected this argument, stating that "it believed" that the calculation of 19 total criminal history points was warranted and that the Probation Officer's calculation of Jarrett's criminal history was correct. The district court's mistaken reference on several occasion to Jarrett's 19 criminal history points as a category V criminal history score rather than a category VI score, notwithstanding, the record reveals no ambiguity regarding the district court's discretionary decision not to depart downward under the circumstances of this case. Accordingly, the court's refusal to depart downward in this case is not reviewable. See Robinson, 958 F.2d at 272.

* 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