United States of America, Plaintiff-appellee, v. Rita Lillian Folawiyo Aka Rita Folawijo; Aka Rita Waters;aka Rita Holliday; Aka Rita Lillian Duncan; Aka Ritafolawiyl; Aka Rita Holliday; Aka Rita Duncan; Aka Lillianfolawiyo, Defendant-appellant, 116 F.3d 1487 (9th Cir. 1997)

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US Court of Appeals for the Ninth Circuit - 116 F.3d 1487 (9th Cir. 1997) Submitted June 3, 1997. **Decided June 23, 1997

Appeal from the United States District Court for the Southern District of California, No. CR-95-01082-1-WBE; William B. Enright, District Judge, Presiding.

Before: BROWNING, FLETCHER and KOZINSKI, Circuit Judges.


MEMORANDUM* 

Ms. Folawiyo was ordered deported on March 9, 1994. On March 21, 1994, she was placed aboard a non-stop flight from Los Angeles International Airport to London. She argues she was "not deported pursuant to a valid deportation order." The lawfulness of a prior deportation is not an element of a § 1326 offense. See United States v. Alvarado-Delgado, 98 F.3d 492, 493 (9th Cir. 1996) (en banc). The denial of her motion to dismiss is therefore affirmed.

While the district court indicated it did not think it had jurisdiction to depart downward because Folawiyo was willing to depart voluntarily, the court then said that it did not think a downward departure was warranted. See Transcript of Sentencing Proceeding before the Honorable William B. Enright ("I don't think any further departure is merited as far as I am concerned.... On the merits, I am going to decline the request for downward departure because I don't think it's merited in this case.") We may not review the district court's denial of Folawiyo's motion for downward departure. See United States v. Eaton, 31 F.3d 789, 793 (9th Cir. 1994) ("If ... the court indicates that it would not depart even if it could, the sentence is not reviewable on appeal.")

AFFIRMED.

 **

The panel finds this case appropriate for submission without oral argument pursuant to 9th Cir. R. 34-4 and Fed. R. App. P. 34(a)

 *

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