Unpublished Disposition, 937 F.2d 614 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 937 F.2d 614 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Patrick G. MCKEAGUE, Defendant-Appellant.

No. 90-10618.

United States Court of Appeals, Ninth Circuit.

Submitted June 27, 1991.* Decided July 1, 1991.

Before SCHROEDER, FLETCHER and LEAVY, Circuit Judges.


MEMORANDUM** 

Patrick McKeague appeals his sentence following a guilty plea to bank robbery, in violation of 18 U.S.C. § 2113(a). He contends that since bank robbery is not a violent crime per se, the district court erred by refusing to depart downward from the range prescribed by the United States Sentencing Guidelines ("Guidelines"). We lack jurisdiction to review McKeague's appeal and dismiss.

A district court's discretionary refusal to depart downward from the Guidelines is not reviewable on appeal. United States v. Morales, 898 F.2d 99, 102 (9th Cir. 1990). Nevertheless, where it is the district court's legal conclusion that it lacks the authority to depart, this court may review the lower court's interpretation of the law. Id., 898 F.2d at 102-03 n. 2. We lack jurisdiction to review a refusal to depart even when the district court concludes that it lacks the authority to depart, if the district court simultaneously concludes that there are no facts to support the departure. United States v. Williams, 898 F.2d 1400, 1403 (9th Cir. 1990).

Here, the district court at sentencing heard testimony concerning McKeague's emotional instability. McKeague argued that bank robbery was not, per se, a crime of violence within the meaning of the Guidelines, and that section 5K2.13 of the Guidelines did not preclude the district court from departing downward from the Guidelines. Nevertheless, the district court refused to depart, stating:

I'm not convinced that [the Guidelines] would permit the Court [to depart] ... below the Guideline range.... But I look at this frightening circumstance with a man large in stature coming into an institution, providing a note that threatens the use of violence.... I'm not even certain ... whether the picture painted sufficiently produces a diminished capacity enough to justify an appropriate departure. It's clear that the Defendant was frustrated and been dealt some difficult circumstances. But I'm not going to depart from the Guidelines.

RT 11/20/90 at 30-31.

The district court indicated that, even if it had the authority to depart, it was reluctant to do so given the circumstances. This constitutes a discretionary refusal to depart. See Williams, 898 F.2d at 1403. Accordingly, we are without jurisdiction to review the district court's decision. See id.1 

DISMISSED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

Even if we had jurisdiction, McKeague's argument lacks merit. "A crime of violence is defined as an offense that has as an element the ... threatened use of physical force against the person or property of another." United States v. Borrayo, 898 F.2d 91, 94 (9th Cir. 1989). McKeague's acts fall into this definition because he threatened the use of violence by telling the bank employee that he had a gun. Accordingly, McKeague's offense was a crime of violence. See id