Unpublished Disposition, 904 F.2d 41 (9th Cir. 1990)

MEMORANDUM^** 

Manuel Fernandez-Valencia appeals his sentence, imposed under the United States Sentencing Guidelines (Guidelines), following his guilty plea for importing marijuana into the United States in violation of 21 U.S.C. §§ 952 and 960. Fernandez-Valencia contends that the district court erred by refusing to depart downward from the Guidelines. We dismiss the appeal.

Fernandez-Valencia asserts that the assignment of a criminal history category three to him "over-represents" his criminal history and that, therefore, he deserves a downward departure from the Guidelines. Fernandez-Valencia states that his prior misdemeanor drunk driving convictions in 1979, 1982, and 1988 reveal that he has a drinking problem but are of little relevance to sentencing for the crime of illegal transportation of marijuana. Therefore, Fernandez-Valencia argues, this prior criminal conduct should not have been considered in imposing a sentence on him.

" [A] district court's discretionary decision not to depart downward from the Guidelines is not subject to review on appeal." United States v. Morales, No. 89-11068, slip op. 2423, 2430 (9th Cir. March 5, 1990).

Here, the district court was presented with Fernandez-Valencia's arguments calling for a downward departure at sentencing and did not find those arguments compelling. The judge of the district court explicitly stated that, "I have a problem finding justification to go lower than the 27 months. So I can't find any reason to go below that." Fernandez-Valencia's base offense level is 18. U.S.S.G. Sec. 2D1.1(a)3. His adjusted offense level is 16 because of his acceptance of responsibility for his crime. Due to his prior misdemeanor convictions, Fernandez-Valencia received a criminal history category of III. Therefore, the Guideline range for sentence is 27-33 months. U.S.S.G. Ch. 5 Part A. The imposition of a 27 month sentence is within the properly exercised discretion of the district court and Fernandez-Valencia's request for a downward departure is not subject to our review. See Morales, No. 89-1-168, slip op. at 2430.

Because the request for a downward departure is not subject to our review, we need not decide whether or not Fernandez-Valencia's agreement not to appeal as part of his plea bargain is a valid waiver of his right to appeal.

DISMISSED.