United States v. Rogers

52 F. App'x 400

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 11, 2002
• Docket: No. 02-30131; D.C. No. CR-01-02078-WFN
• Status: Published

Opinion

MEMORANDUM

**

Paul Joseph Rogers appeals his sentence following his guilty plea conviction for distribution of methamphetamine in violation of 21 U.S.C. § 841. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

Rogers contends he is entitled to a downward departure for aberrant behavior under U.S.S.G. § 5K2.20. A district court’s discretionary refusal to depart from a prescribed sentencing guideline range is unreviewable on appeal unless the district court rested its decision on an erroneous belief that it lacked the authority to depart. See United States v. Rivera-Sanchez, 222 F.3d 1057, 1064 (9th Cir.2000). Here, the district court recognized its authority to depart, so we lack jurisdiction to review its decision not to depart. Id.

Rogers’ contention that the district court erred in failing to give a statement of reasons for imposing a sentence of 40 months is unpersuasive. The statute Rogers cites, 18 U.S.C. § 3553(c)(1), requires a statement of reasons only when the sentencing range exceeds 24 months. Here, the sentencing range of 37 to 46 months is too short to be covered by the statute. See United States v. Sweeten, 933 F.2d 765, 768 (9th Cir.1991) (per curiam).

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.