OpenJurist

107 F3d 18 United States v. Hernandez-Hernandez

107 F.3d 18

UNITED STATES of America, Plaintiff-Appellee,
v.
Pedro HERNANDEZ-HERNANDEZ, Defendant-Appellant.

No. 96-50354.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 5, 1997.*
Decided Feb. 07, 1997.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Before: CANBY, HAWKINS, and TASHIMA, Circuit Judges.

1

MEMORANDUM**

2

Pedro Hernadez-Hernandez appeals his 92-month sentence imposed following his guilty plea to illegal reentry of an alien deported subsequent to an aggravated felony conviction, in violation of 8 U.S.C. § 1326(a) and (b)(1). Hernandez-Hernandez contends that the district court abused its discretion by failing to depart downward from the Sentencing Guidelines because his criminal history category overstated the seriousness of his criminal history and because his sixteen-level upward adjustment under U.S.S.G. § 2L1.2(b)(2) was too harsh. We dismiss this appeal for lack of jurisdiction.

3

A district court's discretionary refusal to depart downward is not subject to review on appeal unless the district court based its decision on the belief that it lacked the legal authority to depart. United States v. Eyler, 67 F.3d 1386, 1390 n. 5 (9th Cir.1995). Here, the district court explicitly stated at sentencing that it had the authority, based on Ninth Circuit precedent, to depart downward. The court nevertheless concluded that given Hernandez-Hernandez's criminal history and behavior, a departure was not warranted. Because the district court recognized its authority to depart downward, but declined to do so, we cannot review the district court's decision. See id.

4

DISMISSED.

*

The panel unanimously finds this case suitable for decision 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