United States of America, Plaintiff-appellee, v. Martin Antonio Huertas-flores, Defendant-appellant, 124 F.3d 214 (9th Cir. 1997)

MEMORANDUM^* 

Martin Antonio Huertas-Flores appeals his sentence imposed by the district court following his guilty plea conviction for illegal reentry by a previously deported alien in violation of 8 U.S.C. § 1326(a), (b) (1). We dismiss.

Huertas-Flores contends that the district court erred by denying his request for a two-level downward departure under U.S.S.G. § 5K2.0 in recognition of his willingness to stipulate to deportation and to waive any rights to a contested deportation hearing. There is no indication in the record, however, that the district. court's refusal to depart was based on the belief that it could not do so as a matter of law. See United States v. Pinto, 48 F.3d 384, 389 (9th Cir. 1995). Accordingly, the district court's decision to deny Huertas-Flores' request for a downward departure is not reviewable on appeal. See United States v. Webster, 108 F.3d 1156, 1159 (9th Cir. 1997) (district court "need not say affirmatively that it had the discretion to depart"); United States v. Garcia-Garcia, 927 F.2d 489, 491 (9th Cir. 1991) (per curiam) (same).

DISMISSED.