United States of America, Plaintiff-appellee, v. Rodney Chandler Tufts, Defendant-appellant, 127 F.3d 1108 (9th Cir. 1997)

MEMORANDUM^* 

Rodney Chandler Tufts appeals his 30-month sentence imposed after his guilty plea to conspiracy against the rights of citizens (18 U.S.C. § 241) when he and his codefendants burned a cross in a black man's yard. We dismiss the appeal.

Tufts contends that the district court erred by not departing downward because his criminal history overstated the seriousness of his prior criminal conduct. We lack jurisdiction to review a district court's denial of a downward departure if it was discretionary and did not rest upon the court's belief that it lacked legal authority to depart. See United States v. Makowski, 120 F.3d 1078, 1082 (9th Cir. 1997). The district court's failure to give any reasons for denying a downward departure is not sufficient to indicate that the court believed that it lacked power to depart. See United States v. Berger, 103 F.3d 67, 70 (9th Cir. 1996), cert. denied, 117 S. Ct. 1456 (1997).

Accordingly, because nothing in the record indicates that the district court believed that it lacked the authority to depart, we lack jurisdiction to review the sentence and dismiss the appeal. See Makowski, 120 F.3d at 1082.¹ 

DISMISSED.