Unpublished Disposition, 930 F.2d 30 (9th Cir. 1991)

MEMORANDUM^** 

Armando Herrera-Ramirez challenges his sentence on grounds that the district court erred in ruling that it had no discretion to depart downward from the applicable Guideline range for his offense. Yet, as another panel of this court has recently noted:

We have held that we lack jurisdiction to review a district court's discretionary decision not to depart downward from the sentencing guidelines. United States v. Morales, 898 F.2d 99 (9th Cir. 1990). We have also held that appellate review of a sentence that is within the applicable guideline range, and was not imposed in violation of law, is unavailable. United States v. Pelayo-Bautista, 907 F.2d 99, 101 (9th Cir. 1990).

United States v. Garcia-Garcia, No. 90-50100, slip op. at 2404 (9th Cir. Mar. 4, 1991).

Appellant argues that there is significant distinction between a discretionary refusal to depart downward and a refusal that is premised upon an erroneous assumption that the court cannot depart downward. We agree, but we are not persuaded that the district court's refusal in this case was non-discretionary. Appellant points to the following statement by the district court at sentencing:

Mr. Herrera, I appreciate your comments. Unfortunately, as a judge, I no longer have much discretion in deciding what the sentence should be. The sentences are set by the Commission in Washington and so I must follow their directives. And so I am forbidden by law to go any lower, unless there is a legal basis to do so, which I see none in this case, to go below seventy-eight months. So I have to sentence you to seventy-eight months.

(emphasis added). These comments indisputably suggest that the district court felt that its sentencing decision was constrained by the applicable law, and indeed it was. Even a discretionary departure requires a legal basis. See United States v. Gillock, 886 F.2d 220, 221 (9th Cir. 1989) (downward departures are infrequently appropriate). In light of the district court's comments during the sentencing hearing as a whole, we conclude that the district court refused to exercise its discretion to depart downward because it concluded that there was no legally supportable reason to do so. Under such circumstances, we have no jurisdiction to review the district court's decision.

APPEAL DISMISSED.