United States v. Richard Washington

122 F.3d 1075

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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

No. 96-10500.

United States Court of Appeals, Ninth Circuit.

Submitted August 25, 1997.**
Decided Aug. 29, 1997.

Appeal from the United States District Court for the District of Nevada, No. CR-95-00218-LDG; Lloyd D. George, Chief Judge, Presiding.

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

1

MEMORANDUM*

2

Richard Washington appeals his 60-month sentence imposed by the district court following his guilty plea to conspiracy in violation of 18 U.S.C. § 371. We dismiss the appeal.

3

Washington contends that the district court erred by refusing to consider a downward departure because of an erroneous belief that it did not have the legal authority to depart. This contention lacks merit.

4

We lack jurisdiction to review a district court's denial of a downward departure if it was discretionary and did not rest upon the court's belief that it lacked legal authority to depart. See United States v. Makowski, No. 96-50570, slip op. 9331, 9338 (9th Cir. Aug. 6, 1997). The district court's failure to give any reason for denying a downward departure is not sufficient to indicate that the court believed it lacked power to depart. See United States v. Berger, 103 F.3d 67, 70 (9th Cir.1996), cert. denied, 117 S.Ct. 1456 (1997).

5

Here, the record does not suggest that the district court would otherwise have departed in this case. See United States v. Estrada-Plata, 57 F.3d 757, 762 (9th Cir.1995). The district court's comments reflect that it based Washington's sentence on the facts and culpability, not because it lacked authority to depart. See United States v. Koenig, 952 F.2d 267, 274 (9th Cir.1991). Because the district court exercised its discretion in refusing to depart downward, we lack jurisdiction to review the sentence and dismiss Washington's appeal. See Makowski, No. 96-50570, slip op. at 9338.

6

DISMISSED.

**

The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a); 9th Cir. R. 34-4. Further, appellant's motion to submit supplemental brief 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