United States of America, Plaintiff-appellee, v. Fernando Alvarado-orozco, Defendant-appellant, 103 F.3d 141 (9th Cir. 1996)

MEMORANDUM^* 

STANDARD OF REVIEW

We review a district court's determination that a defendant was not a minor participant for clear error. United States v. Benitez, 34 F.3d 1489, 1497 (9th Cir. 1994), cert. denied, 513 U.S. 1197, 115 S. Ct. 1268 (1995). Although we may review whether a district court understood that it had the discretionary authority to depart from the sentencing guidelines, a district court's discretionary refusal to depart from the sentencing guidelines is not reviewable on appeal. United States v. Eyler, 67 F.3d 1386, 1390 n. 5 (9th Cir. 1995).

DISCUSSION

Orozco arranged the drug transaction, knew where to get the drugs and whom to contact, and dealt with the informant. His role in the criminal activity was not "substantially less culpable" than any co-participants. Benitez, 34 F.3d at 1497-98. Orozco's participation is not minor simply because there must have been a supplier.

The district court's holding was based solely on Orozco's failure to show he was a minor participant. There was no punishment for Orozco's decision not to name other participants.

Orozco argues that the district court did not recognize that it had the authority to depart downward to sentence him to the sentence specified in the plea agreement. The record shows that the district court was aware of its discretion to depart from the sentencing guidelines, but chose not to do so. We lack jurisdiction to review this decision. Eyler, 67 F.3d at 1390 n. 5.

AFFIRMED.