United States of America, Plaintiff-appellee, v. Michael Edward Sherrell, Defendant-appellant, 978 F.2d 717 (9th Cir. 1992)

MEMORANDUM^** 

Michael E. Sherrell appeals his sentence under the Sentencing Guidelines following his guilty plea to possession with intent to distribute amphetamine and methamphetamine in violation of 21 U.S.C. § 841(a) (1). Sherrell contends that the district court erred by refusing to grant a downward departure based on (1) the disparity between Sherrell's and his codefendant's sentence, (2) his lack of prior convictions, and (3) his extraordinary physical impairment. We dismiss the appeal for lack of jurisdiction.

We have no jurisdiction to review a sentencing court's refusal to depart downward as long as the court in fact exercised its discretion. United States v. Robinson, 958 F.2d 268, 272 (9th Cir. 1992).

In its fact finding order filed following the sentencing hearing, the district court stated that "all of defendant's arguments [for a downward departure] were taken into consideration when the guidelines were formulated," and that the court saw "no valid reason to downward depart." Accordingly, because the district court exercised its discretion in refusing the departure, we have no jurisdiction over Sherrell's appeal. See id.

DISMISSED.