United States of America, Plaintiff-appellee, v. Aaron Lamont Carter, Defendant-appellant, 17 F.3d 396 (9th Cir. 1994)

MEMORANDUM^** 

Aaron Lamont Carter appeals his 84-month sentence following a guilty plea to knowingly distributing a substance containing cocaine base in violation of 21 U.S.C. § 841(a). Carter contends the district court erred by refusing to depart downward based upon his alleged overrepresented criminal history category. Specifically, he argues that the district court erroneously concluded that a departure would be meaningless because the applicable sentencing ranges overlapped, and thus failed to exercise its discretion. We disagree and dismiss the appeal for lack of jurisdiction.

We lack jurisdiction to review a district court's discretionary refusal to depart downward from the Guidelines. United States v. Robinson, 958 F.2d 268, 272 (9th Cir. 1992).

At sentencing, the district court allowed defense counsel to argue in support of a downward departure, afforded Carter his right of allocution, and concluded that "I do not feel the criminal history is overstated.... I decline that kind of departure."

Because the court exercised its discretion by refusing to depart from the Guidelines, we lack jurisdiction to review this decision. See id.

DISMISSED.