United States of America Plaintiff-appellee, v. Jose Hugo Valencia, Defendant-appellant, 145 F.3d 1343 (9th Cir. 1998)

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US Court of Appeals for the Ninth Circuit - 145 F.3d 1343 (9th Cir. 1998) Submitted** Dec. 2, 1997. Decided May 15, 1998

Appeal from the United States District Court for the District of Montana, Paul G. Hatfield, Senior District Judge, Presiding.

Before REAVLEY,*** BOOCHEVER, and KLEINFELD, Circuit Judges.


MEMORANDUM* 

Valencia's argument that the district court erred when it failed to address his argument for downward departure is resolved by our decisions in United States v. Berger, 103 F.3d 1156, 1167-70 (9th Cir. 1996), cert. denied, 117 S. Ct. 1456 (1997), and United States v. Webster, 108 F.3d 1156, 1158-59 (9th Cir. 1997), in which, subsequent to the decision in Koon v. United States, 518 U.S. 81, 116 S. Ct. 2035, 135 L. Ed. 2d 392 (1996), we held that a sentencing court's silent exercise of its discretion not to depart downward is unreviewable. AFFIRMED.

 **

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

 **

* Honorable Thomas M. Reavley, Senior United States Circuit Judge for the Fifth Circuit Court of Appeals, sitting by designation

 *

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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