United States of America, Plaintiff-appellee, v. Derrick Mauri Breedlove, Defendant-appellant.united States of America, Plaintiff-appellee, v. Charles Lamont Henry, Defendant-appellant, 104 F.3d 366 (9th Cir. 1996)

MEMORANDUM^** 

Derrick Mauri Breedlove appeals his 108-month sentence under the Sentencing Guidelines following his conviction for conspiracy to commit armed bank robbery and armed bank robbery in violation of 18 U.S.C. §§ 371 and 2113(a), (d). Breedlove contends that the district court abused its discretion by refusing to depart downward based upon over-representation of criminal history. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

"We have held that decisions to deny downward departure will be considered discretionary unless the district court indicates that its refusal to depart rests on its view that it could not as a matter of law do so." United States v. Pinto, 48 F.3d 384, 389 (9th Cir.), cert. denied, 116 S. Ct. 125 (1995). If the district court's decision was discretionary, it is not reviewable on appeal. See id.

Here, the record indicates that the district court heard Breedlove's arguments for a downward departure under U.S.S.G. § 4A1.3 and denied Breedlove's requested departure within its discretion. The district court stated that "this [bank robbery] was particularly callous. And on that basis I am exercising my discretion not to depart outside of the guideline range." Because the district court's decision does not rest on its belief that it was prevented by law from departing, we will not review the court's discretionary decision. See id. Accordingly, the district court's judgment is affirmed.

Charles Lamont Henry appeals his conviction and sentence following a jury trial for conspiracy to commit armed bank robbery and armed bank robbery in violation of 18 U.S.C. §§ 371 and 2113(a), (d). Pursuant to Anders v. California, 386 U.S. 738 (1967), Henry's counsel filed a brief stating that she finds no meritorious issues for review, and a motion to withdraw as counsel of record. Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 83 (1988), discloses no issue for review. Accordingly, the motion of counsel to withdraw is GRANTED and the district court's judgment is affirmed.

AFFIRMED.