United States of America, Plaintiff-appellee, v. Paul Bruce Vera, Defendant-appellant, 993 F.2d 887 (9th Cir. 1993)

MEMORANDUM^** 

Paul Bruce Vera appeals his 27-month sentence after a guilty plea to possession of counterfeit currency in violation of 18 U.S.C. § 472. Vera contends that the district court erroneously believed that he requested a departure solely based upon substantial cooperation with the government pursuant to U.S.S.G. § 5K1.1, rather than on exceptional acceptance of responsibility. We dismiss the appeal for lack of jurisdiction.

A district court's discretionary refusal not to depart downward from the Guidelines is not reviewable on appeal. United States v. Garcia-Garcia, 927 F.2d 489, 490 (9th Cir. 1991) (per curiam).

Prior to sentencing, Vera filed position papers regarding mitigating sentencing factors. Vera argued, among other things, that the district court should depart downward based upon his exceptional acceptance of responsibility. Nonetheless, at sentencing, Vera requested a downward departure based upon only his alleged substantial cooperation with the authorities in the investigation and prosecution of another individual. The prosecutor indicated that no substantial assistance motion would be filed. The district court then imposed a sentence at the low end of the Guidelines range. There is no error.

Because Vera did not object to the district court's silence on its authority to depart, the court was not required to state that it did have authority to depart. See Garcia-Garcia, 927 F.2d at 491 ("Under these circumstances we will assume that the district court knows and applies the law correctly, realizes that it does have authority to depart, but concludes that it would be inappropriate to do so....").

The district court therefore properly exercised its discretion by refusing to depart from the Guidelines and we lack jurisdiction to review Vera's request for a downward departure. See Garcia-Garcia, 927 F.2d at 491.

DISMISSED.