53 F3d 340 United States v. Gonzales

UNITED STATES of America, Plaintiff-Appellee,
v.
Mario Martinez GONZALES, Defendant-Appellant.

No. 94-30127.

United States Court of Appeals, Ninth Circuit.

Submitted April 19, 1995.*
Decided April 28, 1995.

53 F.3d 340
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Appeal from the United States District Court, for the District of Oregon, D.C. No. CR-93-357-01-JAR; James A. Redden, District Judge, Presiding.

Before: BROWNING, SNEED, and T.G. NELSON, Circuit Judges.

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1

MEMORANDUM**

2

Mario Martinez Gonzales appeals his sentence under the Sentencing Guidelines for his guilty plea conviction to illegal re-entry in violation of 8 U.S.C. Sec. 1326(a) & (b)(2). He contends that the district court erred in refusing to depart downward pursuant to U.S.S.G. Sec. 5K2.0 for cases that involve factors which have not been given adequate consideration by the sentencing Commission. Specifically, Gonzales contends that the Guidelines do not adequately consider a defendant's participation in small drug transactions where there is an automatic sixteen level enhancement for persons convicted of illegal reentry with a previous "aggravated felony conviction." This court "has no jurisdiction to review a sentencing court's refusal to depart downward as long as the court in fact exercised its discretion." United States v. Robinson, 958 F.2d 268, 272 (9th Cir.1992). The district court stated both at the sentencing hearing and in its written order that it recognized its discretion to depart downward, and exercised its discretion to decline to depart. Accordingly, we do not have jurisdiction to consider Gonzales appeal. Id.

3

DISMISSED.

*

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