United States of America, Plaintiff-appellee, v. Yolanda Hoelscher, Defendant-appellant, 959 F.2d 242 (9th Cir. 1992)

MEMORANDUM^** 

Yolanda Hoelscher appeals her sentence of thirteen months following her conviction for misapplication of bank funds. She contends that the district court erred in failing to depart downwards from the applicable sentencing guideline range because of her economic hardship. We have jurisdiction, and we affirm.

Although we have no jurisdiction to review a district court's refusal to exercise its discretion to depart downward from the applicable guideline range, United States v. Garcia-Garcia, 927 F.2d 489, 490-91 (9th Cir. 1991), in this case the district court refused to depart because it believed that the guidelines precluded any departure on the basis of economic hardship. See E.R. 33 ("economic hardship and financial stress are not grounds for departure.... So I don't think the grounds are there, even though I certainly understand what you say."). A district court's conclusion that it lacks authority to depart is appealable, Garcia-Garcia, 927 F.2d at 491, and that conclusion is reviewed de novo. See United States v. Todd, 909 F.2d 395, 397 (9th Cir. 1990).

Hoelscher sought a downward departure on the basis of economic hardship because she embezzled the money from her employer to pay for her son's drug rehabilitation. Hoelscher concedes that "economic hardship" is not listed in the guidelines as a factor justifying downward departure, but contends that the district court could have considered it as a "mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines." 18 U.S.C. § 3553(b). This argument is foreclosed by U.S.S.G. § 5K2.12, which provides that "The Commission considered the relevance of economic hardship and determined that personal financial difficulties and economic pressures upon a trade or business do not warrant a decrease in sentence." The district court was therefore correct in concluding that it lacked discretion to depart based on economic hardship.

Hoelscher also argues that she was misled by the probation officer into believing that the presentence report would be more favorable than in fact it was. However, before the district court Hoelscher conceded that the probation officer did not promise her a reduced sentence:

[The Defendant:] Now, of course, he said it is up to you [the court]. You know, you sentence. You impose a sentence.

The Court: When you entered your plea you were told that the matter of sentencing was going to be up to the court, not to the probation officer.

The Defendant: Yes.

Hoelscher has therefore failed to show how she was prejudiced by any representations the probation officer may have made to her.

For the foregoing reasons, the sentence is AFFIRMED.