United States of America, Plaintiff-appellee, v. Francisco Bernal, Defendant-appellant, 120 F.3d 269 (9th Cir. 1997)

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U.S. Court of Appeals for the Ninth Circuit - 120 F.3d 269 (9th Cir. 1997)

Submitted July 22, 1997. **Decided July 24, 1997


Before: HUG, Chief Judge, KOZINSKI and LEAVY, Circuit Judges.


MEMORANDUM* 

Derek Gaines appeals his sentence imposed following his guilty plea to one count of conspiracy to possess with intent to distribute a substance containing cocaine base in violation of 21 U.S.C. § 846, and one count of possession with intent to distribute a substance containing cocaine base in violation of 21 U.S.C. § 841(a) (1). Gaines asserts that the district court erred in denying his motion for downward departure. In his motion, Gaines argued that the district court should depart below the presumptively applicable guidelines range on the ground that his offense was an act of aberrant behavior. The district court denied the defendant's motion after finding that the defendant's conduct was not a single, spontaneous act.

We do not have jurisdiction to review the district court's discretionary decision not to depart from the Sentencing Guidelines. See United States v. Eaton, 31 F.3d 789, 792 (9th Cir. 1994). Accordingly, we dismiss this appeal.

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