United States v. Ruiz-Stewart

10 F. App'x 538

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 25, 2001
• Docket: No. 99-10132; D.C. No. CR 98-20102-RMW
• Status: Published

Opinion

MEMORANDUM

**

Francisco Ruiz-Stewart appeals his guilty plea conviction and 48-month sentence imposed for being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1326(a).

Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Ruiz-Stewart’s counsel submitted a brief stating that he found no meritorious issues for review. Appellant has not filed a supplemental pro se brief.

Counsel raises the potential issue of the district court’s refusal to depart downward based on cultural assimilation, and an overstated criminal history score. However, we are without jurisdiction to review the district court’s discretionary refusal to depart downward. See United States v. Tucker, 133 F.3d 1208, 1214 (9th Cir.1998).

Counsel also identifies the potential issue of the extent of the district court’s downward departure. However, we also lack jurisdiction to review the extent of a downward departure. See United States v. Eureka Labs., Inc., 103 F.3d 908, 911-12 (9th Cir.1996).

Accordingly, counsel is RELIEVED and the judgment of the district court is AFFIRMED.¹

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 9th Cir. R. 36-3.

1 . Although counsel appears not to have filed a separate motion to withdraw, pursuant to the request made in Appellant’s Opening Brief, counsel is relieved. See United States v. Griffy, 895 F.2d 561, 563 (9th Cir.1990).