United States of America, Plaintiff-appellee, v. Pedro Hernandez-hernandez, Defendant-appellant, 107 F.3d 18 (9th Cir. 1997)

MEMORANDUM^** 

Pedro Hernadez-Hernandez appeals his 92-month sentence imposed following his guilty plea to illegal reentry of an alien deported subsequent to an aggravated felony conviction, in violation of 8 U.S.C. § 1326(a) and (b) (1). Hernandez-Hernandez contends that the district court abused its discretion by failing to depart downward from the Sentencing Guidelines because his criminal history category overstated the seriousness of his criminal history and because his sixteen-level upward adjustment under U.S.S.G. § 2L1.2(b) (2) was too harsh. We dismiss this appeal for lack of jurisdiction.

A district court's discretionary refusal to depart downward is not subject to review on appeal unless the district court based its decision on the belief that it lacked the legal authority to depart. United States v. Eyler, 67 F.3d 1386, 1390 n. 5 (9th Cir. 1995). Here, the district court explicitly stated at sentencing that it had the authority, based on Ninth Circuit precedent, to depart downward. The court nevertheless concluded that given Hernandez-Hernandez's criminal history and behavior, a departure was not warranted. Because the district court recognized its authority to depart downward, but declined to do so, we cannot review the district court's decision. See id.

DISMISSED.