United States v. Miske

101 F. App'x 252

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 18, 2004
• Docket: No. 03-30197; D.C. No. CR-02-30019-ALA-01
• Status: Published

Opinion

MEMORANDUM

**

Daniel Steven Miske, Jr. appeals from the district court’s judgment following a guilty plea to distributing 50 or more grams of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(l)(A)(viii). Miske was sentenced to serve 235 months as a career offender pursuant to U.S.S.G. § 4B1.1 We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Miske contends that the district court erred at sentencing by considering evidence beyond Miske’s own criminal activity. We disagree. The evidence a district court considers outside the record of conviction in sentencing a defendant is subject to an abuse of discretion review. United States v. Ayers, 924 F.2d 1468, 1481 (9th Cir.1991). We conclude, based on the facts in this record, that the district court did not abuse its discretion by considering the outside evidence. See Ayers, 924 F.2d at 1481.

To the extent Miske contends that the district court erred by denying his request for a downward sentencing departure, this court lacks jurisdiction to review the district court’s discretionary denial of a request for departure. See United States v. Smith, 330 F.3d 1209, 1212 (9th Cir.2003).

AFFIRMED.

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.