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36 F3d 1103 United States v. Graham

36 F.3d 1103

UNITED STATES of America, Plaintiff-Appellee,
v.
Thomas Barret GRAHAM, Defendant-Appellant.

No. 94-50105.

United States Court of Appeals, Ninth Circuit.

Submitted Sept. 14, 1994.*
Decided Sept. 19, 1994.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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

1

MEMORANDUM**

2

Thomas Graham appeals his 41-month sentence for unarmed bank robbery. He argues that the district court erred by not granting a downward departure for aberrant behavior. Because we do not have jurisdiction, we dismiss the appeal.

3

Graham pleaded guilty to the $300 robbery and, in a written plea agreement, admitted to another unarmed bank robbery for which he was not indicted. The agreement allowed both robberies to be considered in sentencing.

4

Graham requested a downward departure claiming that his offense was aberrant behavior. At sentencing, the court said:

5

I think you present enough to correctly argue that there is a basis for a downward departure for aberrant behavior. I'm not suggesting that I would necessarily follow that recommendation, but I think that your presentation would justify that position.

6

SER 20. It made no finding on the issue, however, and imposed sentence without a downward departure.

7

We have jurisdiction to review the court's refusal to depart downward only if the court concluded that it did not have the discretion to depart. United States v. Cantu, 12 F.3d 1506, 1510 (9th Cir.1993). Aberrant behavior is a permissible basis for departure. United States v. Morales, 972 F.2d 1007, 1011 (9th Cir.1992). The district court has no obligation to state affirmatively that it recognizes its authority but declines to exercise its discretion. United States v. Garcia-Garcia, 927 F.2d 489, 491 (9th Cir.1991). The court's statement shows that it understood that it had the discretion to depart.

8

DISMISSED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); Ninth Circuit Rule 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 Ninth Circuit Rule 36-3