United States v. Noriego

MEMORANDUM^**

John Charles Noriego appeals from his sentence imposed following his guilty plea conviction for assaulting or intimidating federal officers in the course of their duties, in violation of 18 U.S.C. § 111(a)(1) and (b), and depredation to property of the United States, in violation of 18 U.S.C. § 1361. Noriego contends that the district court erred by failing to depart downward for aberrant behavior under U.S.S.G. § 5K2.20.

We lack jurisdiction to review a district court’s discretionary decision to deny a motion for downward departure from the applicable guideline range. See United States v. Morales, 898 F.2d 99, 102-103 (9th Cir.1990). The decision is reviewable only if the district court indicated that it did not have the legal authority to depart. See United States v. Berger, 103 F.3d 67, 70 (9th Cir.1996) (stating that the district court’s decision to deny a downward departure is considered discretionary unless the district court indicates that it believes it can not depart as a matter of law). The record before us does not contain any indication that the district court believed it could not depart as a matter of law. Id. We conclude from this record that the district court understood its authority to depart and exercised its discretion in denying the downward departure. See United States v. Rivera-Sanchez, 222 F.3d 1057, 1064-1065 (9th Cir.2000).

DISMISSED.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.