United States of America, Plaintiff-appellee, v. Armi Feliciano Hess, Defendant-appellant, 967 F.2d 593 (9th Cir. 1992)

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U.S. Court of Appeals for the Ninth Circuit - 967 F.2d 593 (9th Cir. 1992) Submitted April 15, 1992. *Decided May 29, 1992

Before FLETCHER, POOLE and BRUNETTI, Circuit Judges.


MEMORANDUM** 

Defendant/appellant Armi Feliciano Hess pled guilty to one count of Alien Smuggling in violation of 8 U.S.C. § 1324(a) (2) (B) (ii) and one count of Conspiracy to Smuggle Aliens in violation of 18 U.S.C. § 371. The Presentence Report found her total offense level to be 11, resulting in a guideline range of 8-14 months. Hess provided assistance to the Government in identifying the illegal aliens she had smuggled into the country and helped to convict her co-conspirators. Therefore, the Government moved for a downward departure from the Guidelines. The district court considered the motion, but rejected it. The district judge stated that he "cannot justify a complete downward departure of no incarceration at all." The court, however, "based upon the defendant's cooperation and all of the suggestions made by counsel" decided that "the lowest end of the guidelines would be appropriate, and that we could even give a split sentence in this case to reduce the time of incarceration." Hess was sentenced to four months incarceration and two years supervised release. We affirm.

As a general rule, "a district court's discretionary decision not to depart downward from the guidelines is not subject to review on appeal." United States v. Morales, 898 F.2d 99, 103 (9th Cir. 1990). Hess argues that the district court failed to exercise its discretion and thus committed an error of law reviewable on appeal. See United States v. Cook, 938 F.2d 149, 152 (9th Cir. 1991). Appellant's argument is incorrect. The sentencing transcript reveals that the district court did exercise its discretion.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Circuit Rule 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 Circuit Rule 36-3