United States of America, Plaintiff-appellee, v. Mario Martinez Gonzales, Defendant-appellant, 53 F.3d 340 (9th Cir. 1995)

MEMORANDUM^** 

Mario Martinez Gonzales appeals his sentence under the Sentencing Guidelines for his guilty plea conviction to illegal re-entry in violation of 8 U.S.C. § 1326(a) & (b) (2). He contends that the district court erred in refusing to depart downward pursuant to U.S.S.G. Sec. 5K2.0 for cases that involve factors which have not been given adequate consideration by the sentencing Commission. Specifically, Gonzales contends that the Guidelines do not adequately consider a defendant's participation in small drug transactions where there is an automatic sixteen level enhancement for persons convicted of illegal reentry with a previous "aggravated felony conviction." This court "has no jurisdiction to review a sentencing court's refusal to depart downward as long as the court in fact exercised its discretion." United States v. Robinson, 958 F.2d 268, 272 (9th Cir. 1992). The district court stated both at the sentencing hearing and in its written order that it recognized its discretion to depart downward, and exercised its discretion to decline to depart. Accordingly, we do not have jurisdiction to consider Gonzales appeal. Id.

DISMISSED.