Unpublished Disposition, 914 F.2d 264 (9th Cir. 1990)

MEMORANDUM^** 

Carolyn Sue McCloud appeals her sentence, imposed under the United States Sentencing Guidelines (Guidelines or U.S.S.G.), following her guilty plea to one count of conspiracy to distribute in excess of five grams of cocaine base, in violation of 21 U.S.C. §§ 846 and 841(b) (1) (B). McCloud contends that (1) the government breached the plea agreement, (2) the district court erred by concluding that it lacked authority to depart because the policy statements contained in U.S.S.G. Chapter 5K2 impermissibly restricted the factors the district court could consider when exercising its sentencing discretion and (3) the district court erred by refusing to depart. We have jurisdiction under 28 U.S.C. § 1291 to review the breach of plea agreement claim, and we affirm. We lack jurisdiction to review the district court's use of its discretion to refuse to depart downward from the recommended Guideline range and thus we dismiss that part of the appeal.

We review de novo a defendant's claim that the government breached a plea agreement. United States v. Fisch, 863 F.2d 690, 690 (9th Cir. 1988). Prosecutors must keep promises made in plea agreements. Id. (citing Santobello v. New York, 404 U.S. 257, 262 (1971)). "Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded." Fed. R. Crim. P. 52(a).

Here, McCloud correctly argues that the government breached the plea agreement. The breach, however, did not affect McCloud's substantial rights. In exchange for McCloud's guilty plea the government agreed inter alia to recommend a sentence at the low end of the appropriate guideline range.¹  At sentencing, however, after stating the recommended guideline range the prosecutor stated that "the government has no quarrel with any sentence of imprisonment consistent with that guideline, 121 to 151 months," and that " [t]he guidelines range of 121 to 151 months appears appropriate, and [the government] would respectfully urge the court to sentence in that range, and would most urgently urge the court to reject any request for departure." In keeping with the plea agreement's recommendation, but contrary to the prosecutor's urging for a sentence within the range, the district court sentenced McCloud to the lowest sentence within the recommended guideline range, 121 months imprisonment. Thus, despite the government's breach of the plea agreement, McCloud's substantial rights were not affected. See Fed. R. Crim. P. 52(a).

McCloud argues that (1) the policy statements contained in U.S.S.G. Chapter 5K2 impermissibly restricted the factors the district court could consider when exercising its sentencing discretion and (2) the district judge erred by determining that he lacked authority to depart. We disagree.

The district court shall consider the Guidelines' policy statements in effect at the time of defendant's sentencing. 18 U.S.C. § 3553(a) (5). Here, the district court judge applied the mandatory policy statements, see 18 U.S.C. § 3553(a) (5), to guide its discretionary decision whether to depart from the recommended Guideline range. Contrary to McCloud's contention that the policy statements restricted the district court's use of information at sentencing, the district judge's statements demonstrate that he considered the information she presented at sentencing. The district judge concluded that he would not exercise his discretion to depart, because McCloud's circumstances did not fall within the Guidelines' policy statements for departure.

A district court's discretionary decision not to depart downward is not reviewable by this court. United States v. Morales, 898 F.2d 99, 102 (9th Cir. 1990). Here, the district judge did not state that he lacked authority to depart. After he applied the Guidelines' policy statements, he stated that "the law controls in this circumstance and I can't rewrite the guidelines." This language indicates that the district judge based his refusal to exercise his discretion to depart from the recommended Guideline range on the guidance provided in the policy statements. Thus, we lack jurisdiction to review the district court's decision and this part of McCloud's appeal must be dismissed. See Morales, 898 F.2d at 102.

AFFIRMED IN PART AND DISMISSED IN PART