103 F. 3d 143 - United States v. Sanchez-De Toscano

103 F3d 143 United States v. Sanchez-De Toscano

103 F.3d 143

UNITED STATES of America, Plaintiff-Appellee,
v.
Felicitas SANCHEZ-DE TOSCANO, Defendant-Appellant.

No. 95-50403.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 2, 1996.*
Decided Dec. 5, 1996.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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

1

MEMORANDUM**

2

Felicitas Sanchez-De Toscano appeals her sentence under the Sentencing Guidelines for her guilty plea conviction to transportation of illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). Sanchez contends that the district court erred by "departing upward" from the 24 month custody recommendation of the government and the presentence report. The district court, however, did not "depart upward," but rather sentenced Sanchez within the applicable guideline range of 27 to 33 months, which was based on a higher Criminal History Category than that contemplated by the parties in the plea agreement. Sanchez did not object to the Category, and we have no jurisdiction to review the district court's choice of sentence within the guideline range. United States v. Pelayo-Bautista, 907 F.2d 99, 101 (9th Cir.1990). Accordingly, Sanchez's appeal is

3

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