923 F.2d 863
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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,
Mohammed AKBAR, Defendant-Appellant.
United States Court of Appeals, Ninth Circuit.
Submitted Nov. 16, 1990.*
Decided Jan. 24, 1991.
Before JAMES R. BROWNING, BEEZER and RYMER, Circuit Judges.
Mohammed Akbar appeals his sentence of 188 months for importing, possessing, and conspiracy to distribute heroin. Akbar appeals on the ground that the sentencing judge was unaware that the court could have departed downward from the applicable sentencing guidelines' range. Akbar contends that his medical condition, cancer of the colon, justified a downward departure. He further contends that the sentencing judge wanted to depart downward but believed that downward departure was prohibited in this situation.
A review of the record does not establish Akbar's contention that the sentencing judge wanted to depart downward because of Akbar's medical condition. The sentencing judge specifically stated:
"Insofar as the medical problems of the defendant are concerned, there is nothing about those that persuades the court that they should be taken into account in imposing the sentence.
* * *
... I have no intention of reducing the sentence by reason of his medical problems."
E.R. 77. Nothing in the record contradicts these clear statements which show that the sentencing judge exercised his discretion in refusing to depart downward. The record establishes that the sentencing judge refused to depart downward, and instead elected to sentence Akbar to the bottom of the guideline range in light of Akbar's medical problems.
Because the sentencing court's refusal to depart downward was based on an exercise of discretion rather than a misunderstanding of the law, the decision is not reviewable on appeal. See United States v. Morales, 898 F.2d 99, 102 (9th Cir.1990). We therefore dismiss this appeal.