United States of America, Plaintiff-appellee, v. Martin Aguirre-joya, Defendant-appellant, 26 F.3d 132 (9th Cir. 1994)

MEMORANDUM^** 

The district court's discretionary refusal to depart downward from the sentencing guidelines is not subject to review on appeal. United States v. Morales, 898 F.2d 99, 100 (9th Cir. 1990). Aguirre-Joya argues that Morales does not apply because the record is unclear as to whether the district court exercised its discretion in refusing to depart downward or whether the court believed that it lacked the authority to depart downward.

At the sentencing hearing, the court stated:

[t]he justification for the sentence is as stated by the probation department. The defendant has been deported at least four separate times and has an extensive criminal history. His criminal record consists of two felonies and seven misdemeanor convictions, resulting in two state prison terms and approximately four grants of probation as well as several short periods of custody in local county jails.

The defendant's criminal history shows a lack of respect and/or willingness to comply with the laws of this country.

And it is noted that the prior sanctions, including his prior deportations, have not deterred him from committing other criminal acts and illegally reentering this country. So the sentence is therefore appropriate.

Nothing in the record indicates that the district court believed that it lacked the discretion to depart downward. " [T]he court's silence regarding whether it had authority to depart is not sufficient indication that it believed that it lacked discretion to depart." United States v. Brown, 985 F.2d 478, 480 (9th Cir. 1993). The district court's statements indicate that the sentence was based on facts and culpability. United States v. Koenig, 952 F.2d 267, 273-74 (9th Cir..1991).

Argument based on Aguirre-Joya's position was rejected by the court in the exercise of its discretion. United States v. Robinson, 958 F.2d 268, 272 (9th Cir. 1992). We lack jurisdiction to review. Morales, 898 F.2d at 102.

DISMISSED.