United States of America, Plaintiff-appellee, v. James Hardcastle, Defendant-appellant, 942 F.2d 794 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 942 F.2d 794 (9th Cir. 1991) Submitted Aug. 23, 1991. *Decided Aug. 29, 1991

Before BROWNING, FARRIS and WILLIAM A. NORRIS, Circuit Judges.


James Wesley Hardcastle appeals his sentence, imposed following a guilty plea, for possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a) (1) and bail jumping in violation of 18 U.S.C. § 3146. He contends that the district court erred by failing to recognize its discretion to depart downward from the sentencing range established by the United States Sentencing Guidelines. We dismiss the appeal.

We lack jurisdiction to review the district court's discretionary decision not to depart downward from the applicable Guidelines range. United States v. Morales, 898 F.2d 99, 102-03 (9th Cir. 1990). Where it is not otherwise in dispute, " [t]he district court's silence regarding authority to depart is not sufficient to indicate that the court believed it lacked power to depart." United States v. Garcia-Garcia, 927 F.2d 489, 491 (9th Cir. 1991) (per curiam).

Here, Hardcastle argued at sentencing for a downward departure based on his substantial assistance to the government. Hardcastle contends that the district court misunderstood its discretion to depart downward because his drug offenses carried a mandatory minimum term of imprisonment. Nevertheless, the record of the sentencing hearing reveals no mistake. The district court indicated that it understood Hardcastle's motion for a downward departure but declined to depart. That decision is not subject to review. See Garcia-Garcia, 927 F.2d at 491.



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Cir.R. 34-4. Accordingly, appellant's request for oral argument is denied


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