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983 F2d 1078 United States v. Byzewski

983 F.2d 1078

UNITED STATES of America, Plaintiff-Appellee,
v.
Gregg Allan BYZEWSKI, Defendant-Appellant.

No. 92-30276.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 6, 1993.**
Decided Jan. 11, 1993.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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

1

MEMORANDUM*

2

Gregg Allan Byzewski appeals his sentence imposed following entry of a guilty plea to possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). Byzewski contends the district court erred by refusing to depart because his criminal history category overstated the seriousness of his past criminal conduct. In addition, he contends the district court failed to consider the mitigating factors of his drug and alcohol rehabilitative efforts and youthful lack of guidance when declining to depart downward. We dismiss the appeal.

3

A district court's discretionary refusal to depart downward is not reviewable on appeal. United States v. Robinson, 958 F.2d 268, 272 (9th Cir.1992).

4

Byzewski argued at sentencing that his criminal history category significantly overstated the seriousness of his criminal past because many of his criminal history points were the result of automobile-related offenses. The record indicates the district court exercised its discretion when it refused to depart downward on this basis. Accordingly, we have no jurisdiction to review this issue on appeal. See id.; United States v. Morales, 898 F.2d 99, 103 (9th Cir.1990).

5

On appeal, Byzewski contends that the district court failed to consider the mitigating factors of Byzewski's alcohol rehabilitative efforts and his youthful lack of guidance when it declined to depart downward from the applicable Guidelines sentencing range. Because Byzewski did not raise these issues below, we deem them waived. See United States v. Quesada, 972 F.2d 281, 283-84 (9th Cir.1992).

6

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