United States of America, Plaintiff-appellee, v. Darnell Earl Johnson, Defendant-appellant, 17 F.3d 397 (9th Cir. 1994)

MEMORANDUM^** 

Darnell Earl Johnson appeal his 108-month sentence imposed following entry of his guilty plea to three counts of distributing cocaine in violation of 21 U.S.C. § 841(a) (1). Johnson contends the district court erred by failing to grant a downward departure based upon Johnson's childhood neglect and "sentencing factor manipulation." We dismiss the appeal.

A district court's discretionary refusal to depart downward from the Guidelines is not reviewable on appeal. United States v. Belden, 957 F.2d 671, 676 (9th Cir.), cert. denied, 113 S. Ct. 234 (1992). "Failure to depart without comment on the authority to do so does not convert a discretonary departure into a sentence imposed in violation of law." United States v. Garcia-Garcia, 927 F.2d 489, 490 (9th Cir. 1991) (per curiam).

At sentencing, Johnson argued that the district court should depart downward based upon Johnson's youthful lack of guidance and because the government manipulated the length of his sentence by having the confidential informant request cocaine base rather than powered cocaine hydrochloride and by controlling the number of sales. The district court stated that it had "carefully considered all the facts" relating to the case but declined to depart from the Guideline range. The district court's Findings of Fact Order included the statement that " [i]n its exercise of its discretion, the district court declines to depart downward."

Because the district court exercised its discretion when refusing to depart downward, we lack jurisdiction to review the refusal. See Belden, 957 F.2d at 676. Accordingly, the appeal is DISMISSED.