Unpublished Disposition, 925 F.2d 1471 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 925 F.2d 1471 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,v.Jose De Jesus CRUZ, Defendant-Appellant.

No. 90-50332.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 20, 1991.* Decided Feb. 22, 1991.

Before O'SCANNLAIN, LEAVY and TROTT, Circuit Judges.

MEMORANDUM** 

Jose De Jesus Cruz appeals his sentence imposed under the United States Sentencing Guidelines ("Guidelines"), following his guilty plea for possession of a controlled substance with intent to distribute in violation of 21 U.S.C. § 841(a) (1). Cruz appears to argue that the district court erred by granting the government's motion for a downward departure for Cruz's codefendant and not sua sponte departing downward for Cruz.

A district court's discretionary refusal to depart downward from the Guidelines is not reviewable on appeal. See United States v. Morales, 898 F.2d 99, 102 (9th Cir. 1990).

Here, Cruz's presentence report ("PSR") did not mention any basis for departure. At sentencing, Cruz did not raise any objections to the PSR and did not ask the district court to depart downward based on his codefendant's sentence or any other mitigating circumstance. Nothing suggests that district court considered sentencing Cruz below the Guidelines range.1 

Accordingly, this court lacks jurisdiction to review the district court's discretionary decision not to depart downward. See Morales, 898 F.2d at 102.

DISMISSED.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

The district court accepted the PSR's recommendation for a downward adjustment for Cruz's minor role in the offense. Thus, Cruz's contention that his minor participation was a basis for departure is without merit

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