United States of America, Plaintiff-appellee, v. Richard Lee Curry, Defendant-appellant, 116 F.3d 1486 (9th Cir. 1997)

MEMORANDUM^* 

Richard Lee Curry appeals his 84-month sentence following his guilty plea to aggravated sexual assault, in violation of 18 U.S.C. §§ 2242(1) and 1153. Curry contends that the district court erred by denying him a downward departure for aberrant behavior. We dismiss.

A district court's discretionary refusal to depart downward is not reviewable on appeal. See United States v. Morales, 898 F.2d 99, 101 (9th Cir. 1990). " [D]ecisions to deny downward departure [are] considered discretionary unless the district court indicates that its refusal to depart rests on its view that it could not as a matter of law do so." United States v. Pinto, 48 F.3d 384, 389 (9th Cir. 1995); see United States v. Garcia-Garcia, 927 F.2d 489, 491 (9th Cir. 1991) (per curiam) ("The court's silence regarding authority to depart is not sufficient to indicate that the court believed it lacked power to depart.").

Here, the district court did not indicate that its refusal to depart downward was based on its belief that it could not as a matter of law do so. Rather, the district judge explained that Curry's behavior between his arrest and sentencing demonstrated that he did not warrant a downward departure for aberrant behavior. Thus, the district court's decision to deny a downward departure was discretionary, see Pinto, 48 F.3d at 389, and is not reviewable on appeal, see Morales, 898 F.2d at 101.

DISMISSED.