Unpublished Disposition, 898 F.2d 157 (9th Cir. 1990)

MEMORANDUM^** 

Thomas Edward Jumper, who pled guilty to possession of methamphetamine with the intent to distribute, appeals his sentence under the United States Sentencing Commission Guidelines (hereafter guidelines). Jumper claims the trial court abused its discretion in failing to find that defendant's criminal history was over-represented under the application of the guidelines. We find that the district court's discretionary refusal to depart downward from the sentencing guidelines is not subject to review and, accordingly, we dismiss this portion of the appeal. In his reply brief, Jumper also requests that we remand to determine the type of methamphetamine he possessed. Because the issue was not raised in the district court and there is no confusion in the record of what drug Jumper possessed, we decline to remand.

DISCUSSION

Appellant claims that the sentencing court abused its discretion in not departing from the guidelines and classifying Jumper's criminal history category as I rather than II. Specifically, Jumper claims that the criminal history category II is an overrepresentation of his criminal record because of the inconsequential nature of his prior convictions.

The Ninth Circuit in United States v. Morales, No. 89-10168, slip op. 2423, 2430 (9th Cir. Mar. 5, 1990) recently has held that Congress did not intend to allow appellate review of discretionary refusals to depart downward. Because we have no authority to review the district court's decision, we dismiss this portion of the appeal.

In his reply brief, Jumper argues that his case should be remanded to allow the trial court to make a finding as to whether Jumper possessed methamphetamine or L-methamphetamine/Levo-methamphetamine/L-Desoxeyphedrine. Under the guidelines possession of methamphetamine has a higher offense level than possession of L-methamphetamine/Levo-methamphetamine/L-Desoxeyphedrine. It is unnecessary to remand because the district court implicitly found that Jumper possessed methamphetamine.

The government indicted Jumper for methamphetamine. Jumper pled guilty to possession of methamphetamine and the court calculated the offense level for methamphetamine possession. This process could not have occurred if the court had not found that Jumper possessed methamphetamine rather than a different drug. Moreover, all the parties agreed that the drug was methamphetamine. Jumper has not argued previously nor is there any indication in the record that there was confusion over the identity of the drug. Jumper also has provided no evidence suggesting that the drug at issue was not methamphetamine. Under these circumstances, there is no need for the district court to explicitly state its uncontroverted conclusion that the drug was methamphetamine.

Furthermore, the issue of whether the court has to make a finding that Jumper possessed methamphetamine cannot be raised at this time. An issue not raised in the trial court cannot be raised for the first time on appeal unless it fits into a narrow category of exceptions. "Exceptions to the general rule are recognized where a new theory or issue arises while an appeal is pending because of a change in the law, or where the issue conceded or neglected below is purely one of law and does not affect or rely on the factual record developed by the parties, or where plain error has occurred and injustice might otherwise result." United States v. Whitten, 706 F.2d 1000, 1012 (9th Cir. 1983) cert. denied, 465 U.S. 1100 (1984) (citations omitted). None of these exceptions apply in the instant case. This issue depends on the factual record; there has been no ensuing change in relevant law; and plain error has not occurred. For these reasons, we decline to remand for a determination of which drug Jumper possessed.

The district court's sentence is AFFIRMED.