United States of America, Plaintiff-appellee, v. Jose Esquivel Martinez, Defendant-appellant, 92 F.3d 1194 (9th Cir. 1996)

MEMORANDUM^** 

Jose Esquivel Martinez appeals his sentence under the Sentencing Guidelines following his guilty plea conviction for being a deported alien found in the United States in violation of 8 U.S.C. § 1326(a) and (b) (2). Martinez contends that the district court erred by denying him a downward departure based on his mental condition. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

Martinez contends that the district court only considered his request for a downward departure under U.S.S.G. 5K2.13, and therefore mistakenly believed that it lacked authority to depart downward pursuant to U.S.S.G. §§ 5H1.3 and 5K2.0. We disagree.

"We have held that decisions to deny downward departure will be considered discretionary unless the district court indicates that its refusal to depart rests on its view that it could not as a matter of law do so." United States v. Pinto, 48 F.3d 384, 389 (9th Cir.), cert. denied, 116 S. Ct. 125 (1995). If the district court's decision was discretionary, it is not reviewable on appeal. See id.

Here, the record indicates that the district court heard Martinez's arguments for a downward departure under U.S.S.G. §§ 5H1.3 and 5K2.0 and denied Martinez's requested departure within its discretion. The district court found that although Martinez possibly suffered from depression and other disorders, those disorders were not "significant mental disorders which require [d] a downward departure," and the court declined to depart on this basis. Because the district court's decision does not appear to rest on its belief that it was prevented by law from departing, we will not review the court's discretionary decision. See id.

AFFIRMED.