United States of America, Plaintiff-appellee, v. Pedro Garcia-aguilar, Defendant-appellant, 985 F.2d 575 (9th Cir. 1993)

MEMORANDUM^** 

Pedro Garcia-Aguilar appeals his sentence, imposed following a guilty plea, for importation of marijuana into the United States in violation of 21 U.S.C. §§ 952, 960. Garcia-Aguilar contends that the district court erred by refusing to depart downward from the applicable Guidelines range because his criminal history category of V overrepresented the seriousness of his criminal history. We dismiss the appeal.

A district court's discretionary refusal to depart downward from the Guidelines is not reviewable on appeal. United States v. Robinson, 958 F.2d 268, 272 (9th Cir. 1992).

At sentencing, the district court stated that, based on its review of the presentence report and all other relevant documents, the criminal history was not significantly overrepresented. Defense counsel then was afforded an opportunity to make oral arguments in support of a downward departure. Following argument, the district court stated:

I will make a finding that it is 5 as I previously indicated. His criminal history score I think fairly represents the seriousness of the various crimes that he has committed in the past. He is well acquainted with the criminal procedures in the United States. He has violated the law of the United States on a number of occasions. And I think it's a fair--criminal history of 5 is fair under the circumstances and it does not in any way seriously over-represent the seriousness of the previous offenses (SER at 29-30).

Because the district court exercised its discretion in refusing to depart from the Guidelines, we lack jurisdiction to review Garcia-Aguilar's request for a downward departure. See Robinson, 958 F.2d at 272.

DISMISSED.