Unpublished Disposition, 908 F.2d 978 (9th Cir. 1990)

MEMORANDUM AND ORDER

Endicott appeals only from the sentence imposed by the district court subsequent to his guilty plea and conviction on three counts of unarmed bank robbery in violation of 18 U.S.C. § 2113(a). The district court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction over this timely appeal pursuant to 18 U.S.C. § 3742. We remand to the district judge so that he may clarify his decision-making process.

If the district court exercises its discretion and decides not to depart, there is no jurisdiction for appeal. United States v. Morales, 898 F.2d 99, 102 (9th Cir. 1990). If the district court incorrectly assumes it has no authority to depart when it can do so, we have jurisdiction to review. Id.

Here, Endicott argued that prior juvenile adjudications cannot be considered. Endicott is wrong. United States v. Williams, 891 F.2d 212, 215 (9th Cir. 1989). But Endicott also urged on the district court that his prior juvenile history was very minor in nature. If so, the district court had the option of departing downward pursuant to Sentencing Guideline Sec. 4A1.3.

It is not clear from the sentencing transcript whether the district judge concluded he could not depart or whether he chose not to depart. If the former, he was in error and we have jurisdiction to reverse and to remand for exercise of his discretion. If the latter, there is no jurisdiction to review.

Because the resolution of this ambiguity requires only brief comment by the district judge, we believe the most appropriate course of action is to retain appellate jurisdiction and to ask the district judge to clarify his decision-making process. We therefore remand to the district judge so that he may inform us whether he recognized, at the time of imposing Endicott's sentence, that he had the discretion to depart downward from the sentencing guideline range.

Endicott also argues for the first time on appeal that the Sentencing Commission violated the Juvenile Delinquency Act, 18 U.S.C. § 5031-42 (repealed in part by Pub. L. No. 98-473, Sec. 211, 98 Stat.1987, codified as 18 U.S.C. § 3551, note), by allowing juvenile sentences to be used for enhancement purposes. He contends that under federal law juvenile adjudications are not criminal, but rather civil in nature and therefore the Commission erred in including them as relevant prior criminal history. We do not reach this issue. See United States v. Cloud, 872 F.2d 846, 857 (9th Cir. 1988), cert. denied, 110 S. Ct. 561 (1989).

The Clerk is instructed to transmit this order to the district court. We retain appellate jurisdiction.

Note: 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.