United States of America, Plaintiff-appellee, v. William Walter Capps, Aka Barry Capps, Defendant-appellant, 46 F.3d 1146 (9th Cir. 1995)

MEMORANDUM^** 

William Walter Capps appeals his sentence under the Sentencing Guidelines for his guilty plea conviction to manufacture of marijuana in violation of 21 U.S.C. § 841(a) (1). He alleges that the district court erred in not departing downward, because he was growing the marijuana to give to terminally ill friends which was a "lesser harm" entitling him to a departure under U.S.S.G. Sec. 5K2.11. "The record fails to suggest that the district court was under the impression that it could not depart downward if it chose to do so." U.S. v. Heim, 15 F.3d 830, 833 (9th Cir.), cert. denied, 115 Sup. Ct. 55 U.S. (1994). Accordingly, the district court's refusal to depart is not reviewable on appeal. Id.

DISMISSED.