Unpublished Disposition, 927 F.2d 612 (9th Cir. 1991)

MEMORANDUM^* 

Clinton Sims appeals the 210-month prison sentence and five years of supervised release imposed by the district court following his guilty plea to five counts of unarmed bank robbery, violations of 18 U.S.C. § 2113(a).

Sims contends that the district court erred by concluding that it had no authority to depart downward from the sentencing guideline range. Sims concedes that he is a career offender and that his sentence is at the lower end of the range established by the guidelines. See United States Sentencing Guidelines, Sec. 4.B1.1. Our review of the record reveals that the district court was told by the government that it had no authority to depart downward in this case.

The court's language in imposing the sentence indicates that it believed it had no discretion to depart downward. As we observed in United States v. Morales, 898 F.2d 99, 102-03 (9th Cir. 1990), there is a significant distinction between a trial court's discretionary decision not to depart downward and its erroneous belief that it did not have the power to depart. See id. at 102 n. 2. Morales holds only that "a district court's discretionary decision not to depart downward from the guidelines is not subject to review on appeal." Id. at 103. By contrast, "there is appellate jurisdiction when the 'sentencing court erred in concluding that it did not have the power to deviate downward from the Guidelines.' " Morales, 898 F.2d at 102 n. 2 (quoting United States v. Medeiros, 884 F.2d 75, 77 (3d Cir. 1989)); see also United States v. Mena, No. 89-10434, slip op. at 1674 (9th Cir. Feb. 8, 1991) ("a district court's perception that it lacks the power to depart from a Guideline range ... is [ ] appealable pursuant to 18 U.S.C. § 3742(a) (1) (defendant may appeal from any sentence on the ground that it was imposed in violation of the law)").

Where, as here, the district court has indicated it had no discretion, we remand the case to give the sentencing court an opportunity to exercise its discretion. We do not, however, express an opinion concerning the propriety of a departure given the facts before the court. The sentence is vacated and the case is remanded for further proceedings consistent with this opinion.

VACATED and REMANDED.