United States v. Stephen Veefkind

116 F.3d 488, 1997 U.S. App. LEXIS 20467, 1997 WL 330637

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 11, 1997
• Docket: 96-30271
• Status: Unpublished

Opinion

116 F.3d 488

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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

No. 96-30271.

United States Court of Appeals, Ninth Circuit.

Submitted June 4, 1997**
Decided June 11, 1997.

Appeal from the United States District Court for the Western District of Washington.

Before: WRIGHT, PREGERSON, and THOMPSON, Circuit Judges.

MEMORANDUM*

Carolyn R. DIMMICK, District Judge, Presiding.

Federal prisoner Stephen Veefkind pleaded guilty to one count of receipt of child pornography under 18 U.S.C. § 2252(a)(2). Veefkind appeals his sentence imposed under the United States Sentencing Guidelines and within the applicable guidelines range. We affirm.

"We lack jurisdiction to review a district court's discretionary refusal to depart downward from the Guidelines." United States v. Webster, 108 F.3d 1156, 1158 (9th Cir.1997). Veefkind contends, however, that the district court may have failed to depart downward based on an erroneous belief that it lacked the legal authority to do so. See United States v. Jackson, 986 F.2d 312, 314 (9th Cir.1993) (noting that district court's erroneous belief that it lacks authority to depart downward is an error of law reviewable on appeal). This contention is without merit.

At sentencing Veefkind urged numerous grounds for downward departure. After considering these grounds, the district court unequivocally stated, "I don't see any reason for downward departure, counsel. I will take into consideration everything you said in your report and the totality of the circumstances, but I see no reason for downward departure." These statements clearly indicate that the district court found no reason to depart, not that the district court believed it lacked legal authority to depart. See Webster, 108 F.3d at 1158 (noting that district court's comment that " 'I, frankly, do not see any grounds for departure' indicates that she found no reason to depart, not that she believed she lacked authority to do so"); see also United States v. Garcia-Garcia, 927 F.2d 489, 490-91 (9th Cir.1991) (finding that district court need not affirmatively state that it has discretion to depart downward). For this reason, we lack jurisdiction to consider Veefkind's appeal.

APPEAL DISMISSED.

** The panel unanimously finds this case suitable for submission on the record and briefs and 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