United States of America, Plaintiff-appellee, v. Gregg Allan Byzewski, Defendant-appellant, 983 F.2d 1078 (9th Cir. 1993)

MEMORANDUM^* 

Gregg Allan Byzewski appeals his sentence imposed following entry of a guilty plea to possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a) (1). Byzewski contends the district court erred by refusing to depart because his criminal history category overstated the seriousness of his past criminal conduct. In addition, he contends the district court failed to consider the mitigating factors of his drug and alcohol rehabilitative efforts and youthful lack of guidance when declining to depart downward. We dismiss the appeal.

A district court's discretionary refusal to depart downward is not reviewable on appeal. United States v. Robinson, 958 F.2d 268, 272 (9th Cir. 1992).

Byzewski argued at sentencing that his criminal history category significantly overstated the seriousness of his criminal past because many of his criminal history points were the result of automobile-related offenses. The record indicates the district court exercised its discretion when it refused to depart downward on this basis. Accordingly, we have no jurisdiction to review this issue on appeal. See id.; United States v. Morales, 898 F.2d 99, 103 (9th Cir. 1990).

On appeal, Byzewski contends that the district court failed to consider the mitigating factors of Byzewski's alcohol rehabilitative efforts and his youthful lack of guidance when it declined to depart downward from the applicable Guidelines sentencing range. Because Byzewski did not raise these issues below, we deem them waived. See United States v. Quesada, 972 F.2d 281, 283-84 (9th Cir. 1992).

DISMISSED.