United States v. Yanez-Plancarte

59 F. App'x 938

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 19, 2003
• Docket: No. 02-30264; D.C. No. CR-01-02146-FVS
• Status: Published

Opinion

MEMORANDUM

**

Jesus Yanez-Plancarte appeals the sentence imposed following his guilty plea to being an alien found in the United States following deportation in violation of 8 U. S.C. § 1326.

The record is insufficiently developed to address on direct appeal Yanez-Planearte’s claims of ineffective assistance of counsel. United States v. Reyes-Platero, 224 F.3d 1112,1116 (9th Cir.2000).

Because there is no indication in the record that the district court believed it lacked authority to grant a downward departure based on a “combination of factors,” the district court’s failure to depart on that basis sua sponte is not appealable. United States v. Garcia-Garcia, 927 F.2d 489 (9th Cir.1991) (failure to depart, when the record is silent on the issue of authority and sentence is imposed within the applicable guideline range, is not appealable); cf. United States v. Castillo-Casiano, 198 F.3d 787, 790 (9th Cir.1999), amended, 204 F.3d 1257 (9th Cir.2000) (reviewing for plain error the district court’s failure to depart sua sponte on a ground that was barred by law at the time of sentencing).

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.