United States v. Ruiz-Rodriguez

MEMORANDUM ^**

Cesar Saul Ruiz-Rodriguez appeals pro se the 37-month sentence imposed following his guilty plea to a single count of illegal reentry following deportation, in violation of 8 U.S.C. § 1326(a) and (b)(2). For the reasons stated, we affirm in part and dismiss in part.

Ruiz-Rodriguez first contends that the district court erred by failing to grant a downward departure for over-representation of criminal history on the grounds that two prior felony convictions were related pursuant to U.S.S.G. § 4A1.2. Because the district court’s decision not to depart was discretionary, we dismiss this claim as unreviewable on appeal. See United States v. Wetchie, 207 F.3d 632, 636 (9th Cir.), cert. denied, 531 U.S. 854, 121 S.Ct. 134, 148 L.Ed.2d 87 (2000).

Ruiz-Rodriguez next contends that the district court erred by sentencing him pursuant to a 16-level enhancement for prior aggravated felony convictions which were not charged in the indictment. Because this contention is foreclosed by our decision in United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir.2000), cert. denied, — U.S. —, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001), we affirm. See Pacheco-Zepeda, 234 F.3d at 415.

AFFIRMED IN PART and DISMISSED IN PART.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.