United States v. Michael Cottingham , 82 F.3d 423 ( 1996 )

82 F.3d 423

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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

No. 95-50196.

United States Court of Appeals, Ninth Circuit.

Submitted March 26, 1996.*
Decided April 1, 1996.

Before: GOODWIN, WIGGINS and O'SCANNLAIN, Circuit Judges.

1

MEMORANDUM**

2

Michael Cottingham appeals his sentence under the Sentencing Guidelines imposed following his guilty plea conviction for distribution of cocaine base. Cottingham contends that the district court failed to recognize it could exercise its discretion to depart downward on the ground that his deformed left arm creates an extraordinary physical impairment. We disagree.

3

It is apparent from the record that the sentencing court was aware of its authority to depart on the permissible grounds offered by Cottingham, 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).

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