United States of America, Plaintiff-appellee, v. Miguel Fabian Ramirez-melgosa, Defendant-appellant, 960 F.2d 153 (9th Cir. 1992)

MEMORANDUM^** 

Ramirez-Melgosa pled guilty to possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a) (1). At sentencing, the district court correctly concluded that the appropriate base offense level is 30. He then reduced that offense level by two point for "minor participation" and an additional two points for acceptance of responsibility. The district court also correctly concluded that defendant's criminal history category is III.

Defendant asked for a further two-point reduction in his base offense level on the ground that he was a minimal participant. The district court refused: it found that defendant was not a minimal participant because "this case ... suggest [s] an ongoing, over-a-period-of-days involvement by this defendant." ST at 4.

Defendant also moved for a downward departure to Criminal History Category I on the ground that Category III overrepresented his criminality. The district court agreed that Category III overrepresented defendant's criminality, but departed down only to Criminal History Category II.¹ 

A base offense level of 26 and a Criminal History Category of II yielded a presumptively applicable guidelines range of 70-87 months. The court sentenced the defendant at the lowest end of that range to 70 months.

Defendant appeals. He argues that the district court should have departed further down on the basis of "aberrant behavior." An aberrant behavior departure is tantamount to a departure below Criminal History Category I for criminal history overrepresentation. Our review of the transcript indicates that defendant did not raise this argument below. Not only did he fail to mention the possibility of an aberrant behavior departure, but he only asked for a downward departure to Criminal History Category I.

Defendant's appeal may only be construed as an argument that the court erred in refusing to depart all the way down to Criminal History Category I. The district court's refusal to go as far it permissibly might have gone is not subject to review, however, for the same reason that a court's decision not to exercise its discretion to depart is not subject to review. See United States v. Morales, 898 F.2d 99, 103 (9th Cir. 1990) (" [A] district court's discretionary decision not to depart from the Guidelines is not subject to review on appeal."). In this case, the district court recognized that it had the authority to depart down for criminal history overrepresentation. It also found that there was criminal history overrepresentation. It then departed down to Category II. The district court exercised its discretion and we have no basis for reviewing its ruling.² 

AFFIRMED.