Unpublished Disposition, 923 F.2d 864 (9th Cir. 1991)

MEMORANDUM^** 

In these consolidated cases, Clifford Halfhill appeals his sentence, imposed under the United States Sentencing Guidelines (Guidelines or U.S.S.G.) following his conviction on a guilty plea, for two counts of bank robbery. Halfhill was sentenced within the appropriate Guidelines range. Nonetheless, he contends that the district court's failure to state on the record that it had the authority to impose a sentence outside of that range left unclear whether the district court mistakenly believed that it lacked discretion to depart. We lack jurisdiction to review this claim and we dismiss the appeal.

This court may review a sentence only if the sentence:

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect application of the sentencing guidelines; or

(3) is greater than the sentence specified in the applicable guidelines range ... or

(4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.

18 U.S.C. § 3742(a). A sentence anywhere within the applicable Guidelines range does not fall into any of these categories and this court lacks jurisdiction to review it. United States v. Reed, 914 F.2d 1288, 1290 (9th Cir. 1990).

Although we may review a district court's refusal to depart downward where it mistakenly believes it lacks authority, see, e.g., United States v. Page, No. 90-50019, slip op. 15691, 15693-95 (9th Cir. Jan. 2, 1991) (per curiam), nothing in our prior decisions imposes on the district court an affirmative duty to state that it is aware of its discretion to depart. See, e.g., Reed, 914 F.2d 1288; United States v. Morales, 898 F.2d 99 (9th Cir. 1990).

Here, there is nothing in the record to indicate that the district court's refusal to depart from the guideline range was other than discretionary. See United States v. Russell, 870 F.2d 18, 20 (1st Cir. 1989) (reviewing court presumes "that a district court is aware of the law that it is called upon to apply").

Accordingly, we lack jurisdiction to review the district court's sentence. Reed, 914 F.2d at 1290.

DISMISSED.