Unpublished Disposition, 935 F.2d 276 (9th Cir. 1991)

MEMORANDUM^** 

Matias Gervacio-Marin appeals his sentence, imposed following conviction by jury trial, for one count of assault on a federal officer in violation of 18 U.S.C. § 111. Gervacio-Marin contends that the district court erred by refusing to depart downward from the applicable United States Sentencing Guideline range. We lack jurisdiction to consider this contention and dismiss the appeal.

A district court's discretionary decision not to depart downward from the applicable Guidelines range is not reviewable on appeal. United States v. Zweber, 913 F.2d 705, 707-08 (9th Cir. 1990) (no jurisdiction "as long as the [district] court in fact exercised its discretion"); United States v. Morales, 898 F.2d 99, 101-02 and n. 2 (9th Cir. 1990).

At his trial, the jury rejected Gervacio-Marin's claim that he was acting in self-defense when he assaulted a uniformed federal agent while attempting to enter the United States illegally.¹  At sentencing, Gervacio-Marin agreed to the probation officer's calculation of his Guidelines offense level for aggravated assault, including a three-level upward adjustment because he assaulted a person whom he knew or had reasonable cause to believe was a law enforcement officer. See U.S.S.G. Sec. 3A1.2. Nonetheless, he argued that the aberrant nature of his conduct and his "imperfect defense" of self-defense warranted a downward departure from the resulting sentence range. The district court clearly considered these arguments and found that, under the Guidelines, there were no appropriate grounds for departure. We lack jurisdiction to review this decision. See Zweber, 913 F.2d at 708.

DISMISSED.