Unpublished Disposition, 930 F.2d 29 (9th Cir. 1991)

MEMORANDUM^** 

Rodney Seth Arrieta appeals a sentence imposed under the Sentencing Reform Act of 1984 and the Sentencing Guidelines. Based on this court's recent holding in United States v. Morales, 898 F.2d 99 (9th Cir. 1990), we conclude that the district court's discretionary refusal to depart downward from the Sentencing Guidelines is not subject to review on appeal. Accordingly, we dismiss this appeal for lack of appellate jurisdiction.

FACTS

Arrieta pleaded guilty to one count of aiding and abetting armed bank robbery and one count of aiding and abetting savings and loan robbery, in violation of 18 U.S.C. §§ 2, 2113(a) and (d).

Due to his prior criminal record, Arrieta was classified as a career offender. The court sentenced him to a term of imprisonment of 240 months. His codefendant, who was not sentenced as a career offender, received a 78-month sentence. Arrieta contends the district court failed to consider a downward departure, permitted by 18 U.S.C. § 3553(b). Arrieta argues the downward departure should have been given, because his sentence was disproportionately harsh compared to the sentence imposed on his codefendant.

DISCUSSION

A district court's discretionary refusal to depart downward from the Sentencing Guidelines is not reviewable on appeal. United States v. Morales, 898 F.2d 99, 101 (9th Cir. 1990).

It is clear from the record the district court was aware of all circumstances affecting Arrieta's sentencing, including his prior record and the length of his codefendant's sentence. We cannot find, as Arrieta argues, that the court failed to perceive it had discretionary power to adjust his sentence. See United States v. Garcia-Garcia, No. 90-50100 (9th Cir. Mar 4, 1991). We therefore conclude the district court's decision not to depart downward was discretionary and as such is not reviewable on appeal.

APPEAL DISMISSED.