Unpublished Disposition, 931 F.2d 898 (9th Cir. 1991)

MEMORANDUM^* 

Bruce King pleaded guilty to violating 18 U.S.C. § 3 and 21 U.S.C. §§ 841(a) (1) and 846. The district court imposed a sentence within the range suggested by the sentencing guidelines. King appeals, arguing that the district court erred in concluding that it lacked the power to depart downward from the guidelines to account for the fact that his mental capacity had been diminished by a drug addiction. The district court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

We first address the government's contention that we lack jurisdiction to entertain this appeal. Although it is true that we will not entertain a district court's discretionary refusal to depart from the guidelines, see United States v. Morales, 898 F.2d 99, 101-02 (9th Cir. 1990), this is not such a case. Here, the district court concluded that it lacked the legal authority to depart from the guidelines. Under these circumstances, appellate review may be had. Id. at 102 n. 2.

The district court properly concluded that it was barred under guidelines sections 5H1.4 and 5K2.13 from departing downward from the guidelines range because of King's addiction. See United States v. Page, 922 F.2d 534, 535-36 (9th Cir. 1991) (under Sec. 5H1.4 district court has no discretion to depart downward from the guidelines based on defendant's alcohol dependence, irrespective of its extreme nature); United States v. Borrayo, 898 F.2d 91, 94 (9th Cir. 1989) (departure under Sec. 5K2.13 impermissible when diminished capacity caused in part by voluntary drug or alcohol use).

The sole question King puts to us is whether these and other provisions of the guidelines, which limit the ability of the district court to consider certain offender characteristics in imposing sentence, impermissibly conflict with 18 U.S.C. § 3661, which provides that "no limitation" shall be placed on the information a court may consider in imposing sentence. We recently answered that question in the negative in United States v. Mondello, 927 F.2d 1463, 1468-70 (9th Cir. 1991). See also United States v. Bruno, 897 F.2d 691, 694-96 (3d Cir. 1990).

We therefore AFFIRM the sentence imposed by the district court.