United States v. Zoel Rivera-Flores , 87 F.3d 1325 ( 1996 )

87 F.3d 1325

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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

No. 95-50543.

United States Court of Appeals, Ninth Circuit.

Submitted June 11, 1996.*
Decided June 18, 1996.

Before: CANBY, NOONAN and LEAVY, Circuit Judges.

1

MEMORANDUM**

2

Zoel Rivera-Flores appeals his sentence under the Sentencing Guidelines imposed following his guilty plea conviction for importation of cocaine. Rivera-Flores contends that the district court erred by denying his motion for a downward departure in sentence on the ground that this was a single act of aberrant behavior. We have jurisdiction to review the district court's refusal to depart downward only if the court concluded that it did not have the discretion to depart. United States v. Cantu, 12 F.3d 1506, 1510 (9th Cir.1993). Aberrant behavior is a permissible basis for departure. United States v. Takai, 941 F.2d 738, 743 (9th Cir.1991).

3

Rivera-Flores asserts the district court believed it could not depart downward because Rivera-Flores had solicited the drug smuggling job. We disagree. It is apparent from the record that the district court was aware of its authority to depart on the permissible grounds offered by Rivera-Flores, and declined to do so. Absent some indication that the district court believed it lacked authority to depart, this court may not review the district court's discretionary refusal to depart downward. See United States v. Pinto, 48 F.3d 384, 389 (9th Cir.), cert. denied, 116 S.Ct. 125 (1995); United States v. Riggins, 40 F.3d 1055, 1058 (9th Cir.1994); United States v. Heim, 15 F.3d 830, 833 (9th Cir.), cert. denied, 115 S.Ct. 55 (1994).

4

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