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899 F2d 19 United States v. Marquez-Diaz

899 F.2d 19

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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

No. 89-50083.

United States Court of Appeals, Ninth Circuit.

Submitted Sept. 1, 1989.
Vacated March 5, 1990.
Resubmitted March 5, 1990.*
Decided April 5, 1990.

Before JAMES R. BROWNING, KOZINSKI and RYMER, Circuit Judges.

1

MEMORANDUM**

2

Alfredo Marquez-Diaz appeals his sentence, imposed under the Sentencing Guidelines, on the grounds that the district court erred by failing to depart downward from the prescribed range, and to state reasons for the sentence. We affirm the sentence on the latter ground and dismiss the appeal to the extent it challenges the failure to depart.

3

A court's discretionary refusal to depart downward is not reviewable on appeal. United States v. Morales, No. 89-10168, slip op. 2423, 2426 (9th Cir. Mar. 5, 1990). We therefore do not reach the merits of this claim.

4

Marquez-Diaz also contends that the case should be remanded for resentencing because the district court failed to state its reasons. See 18 U.S.C. Sec. 3553(c) (1988). The district court's failure to state reasons was harmless because Marquez-Diaz was sentenced to the minimum within the applicable Guideline range.

5

AFFIRMED IN PART; DISMISSED IN PART.

*

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