United States v. Contreras-Alcantar

MEMORANDUM ^**

Rosa Maria Contreras-Aleantar appeals her 37-month sentence following her guilty plea conviction for one count of conspiring to bring in, transport and harbor undocumented aliens, in violation of 8 U.S.C. § 1324(a)(1)(A)(i), (ii), (iii) and (v)(1). We dismiss for lack of jurisdiction.

Contreras-Aleantar contends that the district court committed reversible error by failing to depart downward based on aberrant conduct, family circumstances, diminished mental capacity, or a combination of these factors.¹ See U.S.S.G. Ch. 1, Pt. A, § 4(d); §§ 5K2.13, 5H1.6; United States v. Cook, 938 F.2d 149, 152-53 (9th Cir.1991) (stating that sentencing court may consider a combination of factors when considering a downward departure).

We lack jurisdiction to review Contreras-Alcantar’s appeal, however, because the district court acknowledged it had the authority to depart, but chose not to exercise its discretion based on the facts presented.² See United States v. Davoudi, 172 F.3d 1130, 1133 (9th Cir.1999).

DISMISSED.

** 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 Ninth Circuit Rule 36-3.

1 . Appellant also challenges an upward departure based on the number of aliens smuggled. Issues raised in a brief which are not supported by argument are deemed abandoned. See Fed. R.App. P. 28(a); United States v. Loya, 807 F.2d 1483, 1486-87 (9th Cir.1987).

2 . Although the plea agreement contained a waiver of appeal, the record indicates the district court advised Contreras-Alcantar that she could appeal the court’s decision. Therefore, the appeal waiver is not enforceable. See United States v. Buchanan, 59 F.3d 914, 917 (9th Cir.1995).