Craig Thomas Clark, Petitioner-appellant, v. United States of America, Respondent-appellee, 954 F.2d 727 (9th Cir. 1992)

MEMORANDUM^** 

Craig Thomas Clark appeals pro se the district court's dismissal of his 28 U.S.C. § 2255 petition. He objects to the sentencing judge's refusal to depart downward from the range determined by application of the Sentencing Guidelines. We affirm.

Clark pled guilty to unarmed bank robbery. As defendant concedes, his sentence of sixty-four months incarceration and three years supervised release was properly calculated. Clark objects, however, to the district judge's failure to depart downward. He argues that his criminal history category significantly overestimated the seriousness of his criminal history.

In this case, the district judge explicitly recognized that she had discretion to depart downward, but she declined to exercise it. A district judge's discretionary refusal to depart from the applicable guideline range is not reviewable on appeal. United States v. Garcia-Garcia, 927 F.2d 489, 490 (9th Cir. 1991); United States v. Morales, 898 F.2d 99, 102 (9th Cir. 1990).

Clark also contends that the mechanical application of the Sentencing Guidelines violates due process under the Fifth Amendment. We have previously considered and rejected that contention. See United States v. Brady, 895 F.2d 538 (9th Cir. 1990).

AFFIRMED.