Unpublished Disposition, 933 F.2d 1017 (9th Cir. 1991)

MEMORANDUM^** 

Robert Michael Kouns, a federal prisoner, appeals pro se the district court's summary dismissal of his 28 U.S.C. § 2255 motion. Kouns contends that his sentence constitutes cruel and unusual punishment. We review de novo, United States v. Angelone, 894 F.2d 1129, 1130 (9th Cir. 1990), and we affirm.

Kouns pleaded guilty to one count of armed bank robbery, in violation of 18 U.S.C. §§ 2113(a) and (d). The sentencing range for this offense is 33-41 months. The district court sentenced Kouns to 41 months of imprisonment to be followed by 5 years of supervised release. In his section 2255 motion, Kouns alleged that his sentence constitutes cruel and unusual punishment because (1) it exceeds the guideline range, (2) the district court did not grant him a downward departure based on his drug and alcohol dependency, and (3) his sentence is disproportionate to his offense.

Kouns's first contention is erroneous because his 41-month sentence is within the guideline range. Moreover, this court does not have jurisdiction to review the district court's refusal to grant a downward departure. See United States v. Morales, 898 F.2d 99, 100 (9th Cir. 1990). Finally, the 41-month sentence is not disproportionate to the offense of armed bank robbery. See United States v. Yarbrough, 852 F.2d 1522, 1545-46 (9th Cir.), cert. denied, 488 U.S. 866 (1988). Accordingly, the district court properly dismissed Kouns's section 2255 motion.

AFFIRMED.