Unpublished Disposition, 927 F.2d 612 (9th Cir. 1991)

No. 90-50087.

United States Court of Appeals, Ninth Circuit.

Appeal from the United States District Court for the Southern District of California, No. CR-89-0545-WBE; William B. Enright, District Judge, Presiding.

S.D. Cal.

AFFIRMED IN PART, DISMISSED IN PART.

MEMORANDUM^** 

Scott Joseph Timmons appeals his sentence following a guilty plea to 2 counts of armed bank robbery, in violation of 18 U.S.C. §§ 2113(a) and 2. Timmons contends that the district court violated his Fifth Amendment due process rights and also imposed a sentence which constituted cruel and unusual punishment in violation of the Eight Amendment when the district court failed to grant a request for a further downward departure based on a sentence illegally imposed by the California state courts. We have jurisdiction under 28 U.S.C. § 1291 and we affirm in part and dismiss in part.

There is no statutory authority for a defendant to appeal the extent to which a district court departs downward from the applicable Guidelines sentencing range. United States v. Vizcarra-Angulo, 904 F.2d 22, 23 (9th Cir. 1990); see also United States v. Morales, 898 F.2d 99, 102-03 (9th Cir. 1990). Here, the Guidelines sentencing range was determined to be 210-262 months imprisonment. Timmons was sentenced to 180 months. Because the district court departed downward from the Guidelines sentencing range, this court has no jurisdiction to review the extent of the departure. See Vizcarra-Angulo, 904 F.2d at 23.

Additionally, "there is no statutory provision that accords a prisoner credit against a federal sentence for time served in a state prison on a state charge." Raines v. U.S. Parole Com'n, 829 F.2d 840, 843 (9th Cir. 1987); see also Tucker v. Carlson, No. 88-15568, slip op. 1341, 1347 (9th Cir. February 5, 1991) (quoting Raines) . Timmons contends that the district court should have given him an additional 16 month downward departure to credit him for the time he served as a result of an allegedly illegal state sentence. Regardless of its legality, the earlier sentence was a state sentence for a state offense. Thus, the district court properly did not credit Timmons for the state time served when determining the extent of his downward departure. See Raines, 829 F.2d at 843.

AFFIRMED IN PART, DISMISSED IN PART.