United States of America, Plaintiff-appellee, v. Joey Lance Hopkins, Defendant-appellant, 12 F.3d 1109 (9th Cir. 1993)

MEMORANDUM^** 

Joey Lance Hopkins pleaded guilty to conspiring to steal government money, 18 U.S.C. § 371, and to theft of government money, 18 U.S.C. § 641. He was sentenced to 25 months. He appeals. We affirm.

Hopkins was stealing money from post office vending machines. While released on bond awaiting trial for these thefts, he attempted to rob another postal machine. The court reinstated his bond so that he could be released to an inpatient drug treatment facility. He fled after one week but was later arrested.

While in custody, Hopkins voluntarily provided the police with information regarding an escape plot. Authorities told him that he would not receive any benefit from providing this information. He also gave information regarding one of his coconspirators.

At the sentencing hearing, the government did not move for a downward departure pursuant to 5K1.1. But Hopkins did, claiming that he had aided law enforcement. Although the judge rejected the government's argument that the court lacked the authority to depart absent a government motion, he denied Hopkins' motion. Hopkins claims that the district court erred by refusing to depart.

" [A] district court's discretionary decision not to depart downward from the guidelines is not subject to review on appeal." United States v. Morales, 898 F.2d 99, 102-103 (9th Cir. 1990). The issue is whether the district court thought that it had any discretion to depart downward in this case.

During sentencing, the judge said that he thought that he had the authority to depart downward. He expressly rejected the government's argument to the contrary. He declined to depart because there were also good reasons for increasing Hopkins sentence, and these reasons offset any reasons for reduction.

The court's refusal to depart was an unambiguous discretionary decision. Review is barred by Morales.

AFFIRMED.