United States v. Edward M. Bursiel , 51 F.3d 282 ( 1995 )

51 F.3d 282

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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

No. 94-30310.

United States Court of Appeals, Ninth Circuit.

Submitted March 21, 1995.*
Decided April 4, 1995.

Appeal from the United States District Court, for the Eastern District of Washington, D.C. No. CR-93-00305-FVS; Fred L. Van Sickle, District Judge, Presiding.

Before: SNEED, POOLE and BRUNETTI, Circuit Judges.

1

MEMORANDUM**

2

Edward M. Bursiel appeals his sentence under the Sentencing Guidelines imposed following his guilty plea conviction for manufacture and possession of unregistered explosive devices. He contends that the district court improperly denied his request for a downward departure based on the victim's conduct, and did not adequately consider Bursiel's aberrant behavior. We dismiss the appeal for lack of jurisdiction.

3

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).

4

Bursiel argues that the district court failed to exercise its discretion to depart based on a "convergence of factors" including his aberrant behavior and the victim's conduct. See, e.g., United States v. Koon, 34 F.3d 1416 (9th Cir.1994). We disagree. It is apparent from the record that the sentencing court was aware of its authority to depart on the permissible grounds offered by Bursiel, and declined to do so. Absent some indication that the district court believed it lacked authority to depart, this court lacks jurisdiction to review the district court's discretionary refusal to depart downward. See United States v. Heim, 15 F.3d 830, 833 (9th Cir.), cert. denied, 115 S.Ct. 55 (1994).

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. Accordingly, appellant's request for oral argument is denied

**

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