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935 F2d 276 United States v. Gervacio-Marin

935 F.2d 276

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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

No. 90-50506.

United States Court of Appeals, Ninth Circuit.

Submitted May 29, 1991.*
Decided June 4, 1991.

Before HUG, KOZINSKI and LEAVY, Circuit Judges.

1

MEMORANDUM**

2

Matias Gervacio-Marin appeals his sentence, imposed following conviction by jury trial, for one count of assault on a federal officer in violation of 18 U.S.C. Sec. 111. Gervacio-Marin contends that the district court erred by refusing to depart downward from the applicable United States Sentencing Guideline range. We lack jurisdiction to consider this contention and dismiss the appeal.

3

A district court's discretionary decision not to depart downward from the applicable Guidelines range is not reviewable on appeal. United States v. Zweber, 913 F.2d 705, 707-08 (9th Cir.1990) (no jurisdiction "as long as the [district] court in fact exercised its discretion"); United States v. Morales, 898 F.2d 99, 101-02 and n. 2 (9th Cir.1990).

4

At his trial, the jury rejected Gervacio-Marin's claim that he was acting in self-defense when he assaulted a uniformed federal agent while attempting to enter the United States illegally.1 At sentencing, Gervacio-Marin agreed to the probation officer's calculation of his Guidelines offense level for aggravated assault, including a three-level upward adjustment because he assaulted a person whom he knew or had reasonable cause to believe was a law enforcement officer. See U.S.S.G. Sec. 3A1.2. Nonetheless, he argued that the aberrant nature of his conduct and his "imperfect defense" of self-defense warranted a downward departure from the resulting sentence range. The district court clearly considered these arguments and found that, under the Guidelines, there were no appropriate grounds for departure. We lack jurisdiction to review this decision. See Zweber, 913 F.2d at 708.

5

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

1

Gervacio-Marin claimed that he swung a club at an approaching shadow which he believed to be a bandit. The government introduced evidence to show that Gervacio-Marin struck an immigration officer from behind while the officer was attempting to handcuff two other illegal aliens