Unpublished Disposition, 917 F.2d 29 (9th Cir. 1990)

MEMORANDUM^** 

Sherry Lynne Mackey appeals the sentence imposed upon her under the United States Sentencing Guidelines (U.S.S.G. or Guidelines). Mackey contends that the district court erred by refusing to depart from the sentencing range established by applying the Guidelines to the circumstances under which her crime was committed. This appeal is dismissed because we lack jurisdiction to review a refusal to depart if the district court used its discretion to refuse to depart from the recommended Guideline range. See United States v. Sanchez, No. 89-50082, slip op. 11677, 11693 (9th Cir.Sept. 20, 1990); United States v. Morales, 898 F.2d 99, 103 (9th Cir. 1990).

Here, the district court used its discretion to refuse to depart. The district judge heard arguments from Mackey and her counsel urging a downward departure, as well as the government's request for a sentence at the lowest end of the recommended range. The district judge stated that there was nothing in the policy statements of U.S.S.G. Secs. 5H or 5K that would justify such a departure and that there was nothing to support a sentence at the low end of the range. The district court then imposed a sentence in the middle of the recommended Guideline range.

If the district judge had wanted to departed downward, but for his belief that he lacked authority to depart, he certainly would have imposed only the minimum sentence in the recommended range. See Sanchez, No. 89-50082, slip op. at 11693. Because Mackey was sentenced to a term in the middle of the recommended range, the district judge used his discretion to refuse to depart downward from the recommended sentencing range and we lack jurisdiction to review that decision. See id.

APPEAL DISMISSED.