United States v. Rene Luna-Zamora

62 F.3d 1426

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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

No. 95-50061.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 2, 1995.*
Decided Aug. 8, 1995.

Before: ALARCON, FERNANDEZ, and RYMER, Circuit Judges.

1

MEMORANDUM**

2

Rene Luna-Zamora appeals his 46 month sentence imposed after he pleaded guilty to importing cocaine. Luna-Zamora argues that the district court was unaware that it had the authority to determine the extent of the downward departure once the government moved for a substantial assistance departure. We dismiss for lack of appellate jurisdiction.

3

After the district court granted the government's motion to depart, the government recommended a three-level reduction and Luna-Zamora requested five levels. The district court stated, "the Government has requested three levels and I'm going to grant three levels." The court elaborated that: "I'm not going to second-guess the Government and analyze their information and try to decide how that information could be used. The Government has decided to move for substantial assistance. Three levels is what they feel that his assistance is worth, and I'm not going to second-guess them."

4

Luna-Zamora argues that the district court blindly accepted the government's recommendation, and that was tantamount to holding that the court was without the authority to exercise its discretion and independently determine the extent of the reduction. We disagree. The court listened to Luna-Zamora's argument to reduce the sentence below the government's recommendation. The district court did not indicate that it was bound by the government's recommendation. On this record, we assume the district court knew the law and exercised its discretion. United States v. Garcia-Garcia, 927 F.2d 489, 491 (9th Cir. 1991) (per curiam); United States v. Dickey, 924 F.2d 836, 838 (9th Cir. 1991) (defendant cannot appeal the extent of a departure).

5

DISMISSED FOR LACK OF JURISDICTION.

*

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