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52 F3d 335 United States v. Brown

52 F.3d 335

UNITED STATES of America, Plaintiff-Appellee,
v.
Jonathan Edward BROWN, Defendant-Appellant.

No. 94-50235.

United States Court of Appeals, Ninth Circuit.

Submitted March 6, 1995.*
Decided April 5, 1995.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

1

Before: SCHROEDER and KLEINFELD, Circuit Judges, and KING,** District Judge.

2

MEMORANDUM***

3

Jonathan Edward Brown appeals from his conviction and 75-month sentence after pleading guilty to two counts of unarmed bank robbery, in violation of 18 U.S.C. Sec. 2113(a).

4

Brown argues on appeal that the court erred in not specifically enforcing the pre-indictment plea agreement. We assume the argument was properly preserved for appeal. The district court found that there was no such agreement. After carefully considering the representations made by the participants, the judge found that there were preindictment negotiations "but no preindictement agreement." We review for clear error, United States v. Helmandollar, 852 F.2d 498, 501 (9th Cir.1988), and find none. The record contains ample evidence for the district judge's finding. Because there was no plea agreement, there is nothing to specifically enforce.

5

Finally, the trial court exercised its discretion in refusing to depart downward because of some sort of pre-indictment negotiations or misrepresentations. Discretionary refusals to depart downward are not subject to review on appeal. United States v. Morales, 898 F.2d 99 (9th Cir.1990).

6

AFFIRMED.

*

The Panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

Honorable Samuel P. King, Senior United States District Judge for the District of Hawaii, sitting by designation

***

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