United States of America, Plaintiff-appellee, v. Michael Angelo Torres, Defendant-appellant, 139 F.3d 909 (9th Cir. 1998)

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U.S. Court of Appeals for the Ninth Circuit - 139 F.3d 909 (9th Cir. 1998) Decided Feb. 13, 1998. Submitted February 9, 1998. **

Appeal from the United States District Court for the Northern District of California Ronald M. Whyte, District Judge, Presiding.

Before PREGERSON, CANBY, and LEAVY, Circuit Judges.

MEMORANDUM* 

Michael A. Torres appeals his 168-month sentence imposed by the district court following his guilty plea to conspiring to manufacture, distribute, and possess with intent to distribute controlled substances, in violation of 21 U.S.C. § 846.

Torres contends that the district court erred by refusing to depart downward under U.S.S.G. § 2D1.1, comment. (n. 14), on the ground that his base offense level overstated his culpability. Because the district court was aware of its authority to depart we lack jurisdiction to review the court's discretionary decision not to depart downward. See United States v. Berger, 103 F.3d 67, 69-70 (9th Cir. 1996), cert. denied, --- U.S. ----, 117 S. Ct. 1456, 137 L. Ed. 2d 560 (1997).

DISMISSED.

 **

The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

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