United States of America, Plaintiff-appellee, v. Margarita Marisa Apalategui, Defendant-appellant, 968 F.2d 1221 (9th Cir. 1992)

MEMORANDUM^** 

* Appellant challenges the district court's decision not to depart downward on grounds that appellant's criminal history Category III, while accurately calculated, allegedly over-represented the seriousness of her criminal background. "This court has no jurisdiction to review a sentencing court's refusal to depart downward as long as the court in fact exercised its discretion." United States v. Robinson, 958 F.2d 268, 272 (9th Cir. 1992). The record indicates that the sentencing court here was exercising its discretion when it declined to depart.

II

Appellant further argues that the district court also erred in failing to give her a downward adjustment for her role in the offense, pursuant to U.S.S.G. § 3B1.2. Since appellant was the sole participant in the offense to which she pleaded guilty, a downward adjustment under U.S.S.G. § 3B1.2 was not available. United States v. Valdez-Gonzalez, 957 F.2d 643, 648 (9th Cir. 1992). To the extent that appellant is challenging the district court's refusal to depart downward for courier or "mule" status, as did the sentencing court in Valdez-Gonzalez, we again note that we do not review such discretionary refusals to depart downward. See Robinson, 958 F.2d at 272.

AFFIRMED.