United States of America, Plaintiff-appellee, v. Rosa Barajas, Defendant-appellant, 108 F.3d 339 (9th Cir. 1997)

MEMORANDUM^** 

Rosa Barajas appeals her 21-month sentence following her guilty plea to importation of marijuana, in violation of 21 U.S.C. §§ 952 and 960. Barajas contends that the district court erred by denying her a downward departure for aberrant behavior. We dismiss.

A district court's discretionary refusal to depart downward is not reviewable on appeal. See United States v. Morales, 898 F.2d 99, 101 (9th Cir. 1990); see also 18 U.S.C. § 3742(a) (1985 & Supp.1996) (listing defendant's rights to appeal federal sentences). " [D]ecisions to deny downward departure [are] 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. 1995); see United States v. Garcia-Garcia, 927 F.2d 489, 491 (9th Cir. 1991) (per curiam) ("The court's silence regarding authority to depart is not sufficient to indicate that the court believed it lacked power to depart.").

Here, the district court did not indicate that its refusal to depart downward was based on its belief that it could not as a matter of law do so. Rather the district judge explained that although Barajas had had every opportunity to gain the sympathy of the court and a lenient sentence, Barajas's behavior did not justify a downward departure. Thus, the district court's decision to deny a downward departure was discretionary, see Pinto, 48 F.3d at 389, and is not reviewable on appeal, see Morales, 898 F.2d at 101.

DISMISSED.