United States of America, Plaintiff-appellee, v. Jesus Trujillo-acosta, Defendant-appellant, 990 F.2d 1265 (9th Cir. 1993)

MEMORANDUM^** 

Jesus Trujillo-Acosta appeals his 97-month sentence imposed following entry of a guilty plea to possession with intent to distribute cocaine in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a) (1). Trujillo-Acosta contends the district court erroneously believed it lacked authority to depart downward from the applicable Sentencing Guidelines sentencing range on the basis of "imperfect entrapment" by the government. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

Although a district court's discretionary refusal to depart downward from the Guidelines is not reviewable on appeal, we review de novo its legal determination that it lacked authority to depart. United States v. Belden, 957 F.2d 671, 676 (9th Cir.), cert. denied, 113 S. Ct. 234 (1992). We have previously held that imperfect entrapment may not form the basis for a downward departure from the applicable Guidelines sentencing range. United States v. Takai, 941 F.2d 738, 744 (9th Cir. 1991); United States v. Dickey, 924 F.2d 836, 839 (9th Cir.), cert. denied, 112 S. Ct. 383 (1991).

To the extent that Trujillo-Acosta requests us to reconsider our cases holding that imperfect entrapment may not form a basis for downward departure, we note that a panel not sitting en banc may not overturn Ninth Circuit precedent. See Nichols v. McCormick, 929 F.2d 507, 510 n. 5 (9th Cir. 1991), cert. denied, 112 S. Ct. 1226 (1992); United States v. Aguilar, 883 F.2d 662, 690 n. 25 (9th Cir.), cert. denied, 111 S. Ct. 751 (1991).

Accordingly, we affirm the district court's determination that it lacked discretion to depart downward on the basis of imperfect entrapment. See Dickey, 924 F.2d at 839.

AFFIRMED.