United States of America, Plaintiff-appellee, v. Ernesto Vega-rivas, Defendant-appellant, 125 F.3d 860 (9th Cir. 1997)

MEMORANDUM^** 

Ernesto Vega-Rivas appeals his 27--month sentence imposed following his guilty plea to possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a) (1). Pursuant to Anders v. California, 386 U.S. 738 (1967), Vega-Rivas's counsel filed a brief stating that he finds no meritorious issues for review, and a motion to withdraw as counsel of record.

Counsel identified one possible issue for review: whether the district court abused its discretion by denying Vega-Rivas's request for an additional downward departure because his criminal conduct represented a single act of aberrant behavior. The 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).

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. 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.

Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 83 (1988), discloses no issue for review. Accordingly, the motion of counsel to withdraw is GRANTED and the district court's judgment is AFFIRMED.