United States of America, Plaintiff-appellee, v. Eloy Ernesto Martinez, Jr., Defendant-appellant, 980 F.2d 739 (9th Cir. 1992)

MEMORANDUM^** 

Eloy Ernesto Martinez appeals his sentence imposed under the United States Sentencing Guidelines following entry of a guilty plea to bank robbery in violation of 18 U.S.C. § 2113(a). Martinez contends that the district court erred by finding that it lacked authority to depart downward from the applicable Guidelines range because of his drug dependence. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Generally, a district court's discretionary refusal to depart downward from the Guidelines is not reviewable on appeal. United States v. Belden, 957 F.2d 671, 676 (9th Cir.), cert. denied, 61 U.S.L.W. 3262 (U.S. Oct. 5, 1992) (No. 92-5143). We review de novo, however, a district court's legal determination that it lacked authority under the Guidelines to depart. Id.

At sentencing, Martinez, relying on Robinson v. California, 370 U.S. 660, 667 (1962) (state statute which imprisoned the defendant for simply being a drug addict, without evidence of a crime, constituted cruel and unusual punishment), argued that his criminal history category of VI overrepresented the seriousness of his criminal history because the majority of his prior convictions resulted from drug dependence. Martinez's reliance on Robinson is unavailing.

We have recently held that drug dependency is not a valid ground for granting a downward departure. See United States v. Anders, 956 F.2d 907, 912-13 (9th Cir. 1992); see also United States v. Richison, 901 F.2d 778, 781 (9th Cir. 1990) (drug addiction is not a basis for downward departure under U.S.S.G. § 5H1.4). Accordingly, the district court did not err by finding that it lacked the authority to depart downward based on Martinez's drug addiction.¹ 

AFFIRMED.