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

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US Court of Appeals for the Ninth Circuit - 116 F.3d 1486 (9th Cir. 1997) Submitted June 17, 1997. **Decided June 19, 1997

Appeal from the United States District Court for the District of Idaho. Edward J. Lodge, District Judge, Presiding.

Before: GOODWIN, SCHROEDER, and TASHIMA, Circuit Judges.


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.

 **

The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a); 9th Cir. R. 34-4

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3