United States of America, Plaintiff-appellee, v. Pedro Pedrianes-valina, Defendant-appellant, 996 F.2d 1229 (9th Cir. 1993)

MEMORANDUM^*** 

The district court realized it had discretion to depart for less than minimal role, but consciously chose not to. ASER 16-17, 34. Its refusal to depart on that ground is nonreviewable. United States v. Moss, 972 F.2d 273, 274 (9th Cir. 1992).

The court correctly held it had no discretion to depart because of disparity in sentences among codefendants. Such departures are permissible only when the disparity is caused by the fact that some defendants were sentenced under the Guidelines while others were sentenced under the pre-Guidelines regime. United States v. Petti, 973 F.2d 1441, 1448 (9th Cir. 1992); United States v. Mejia, 953 F.2d 461, 467-68 (9th Cir. 1991).

Finally, though departures for extraordinary acceptance of responsibility are permissible, United States v. Brown, 985 F.2d 478, 482-83 (9th Cir. 1993), "nothing in the record before us suggests that [Pedrianes-Valina] took any action beyond what is normally encompassed within the acceptance of responsibility finding. Acceptance of responsibility, therefore, [could not have] form [ed] the basis for a downward departure in this case." United States v. Berlier, 948 F.2d 1093, 1096 (9th Cir. 1991).

AFFIRMED.