Unpublished Disposition, 914 F.2d 264 (9th Cir. 1990)

ORDER

In our memorandum and order, filed July 10, 1990, we retained appellate jurisdiction and remanded to the district judge so that he could clarify whether he recognized, at the time of imposing Endicott's sentence, that he had the discretion to depart downward from the sentencing guideline range. The district judge in his Memorandum on Remand responded: "in Mr. Endicott's case, I recognized that I could have departed had I found that the inclusion of defendant's juvenile records overstated the seriousness of his criminal history. Because I found that the presentence report adequately and accurately addressed defendant's criminal history, I chose not to depart." The district judge's response makes it clear that he exercised his discretion in choosing not to depart downward from the appropriate guideline range. Therefore, because "a district court's discretionary decision not to depart downward from the guidelines is not subject to review on appeal," United States v. Morales, 898 F.2d 99, 103 (9th Cir. 1990), we do not have jurisdiction.

APPEAL DISMISSED.