United States of America, Plaintiff-appellee, v. Jose Santos-lopez, Defendant-appellant, 125 F.3d 860 (9th Cir. 1997)

MEMORANDUM^* 

Jose Santos-Lopez appeals his sixty-month sentence imposed by the district court after he pleaded guilty to violating 8 U.S.C. § 1326(a), (b) (1). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we dismiss the appeal. A district court's refusal to depart downward from the applicable Guidelines range is not reviewable on appeal. See United States v. Calozza, No. 95-30393, slip. op. 10529, 10544 (9th Cir. Aug. 25, 1997). However, if the district court "indicates that it believes that it lacks the authority to depart," we can review for abuse of discretion. See id. (internal quotations omitted).

Santos-Lopez contends that the district court abused its discretion by refusing to depart downward pursuant to U.S.S.G. § 5K2.16 or, in the alternative, section 5K2.0. These contentions lack merit.

Here, the district court gave no indication that it believed it lacked the authority to depart. Instead, the court stated that departure was not warranted given the particular facts before it, which constitutes an unreviewable discretionary decision. See Calozza, slip. op. at 10544-45; United States v. Webster, 108 F.3d 1156, 1158-59 (9th Cir. 1997). Additionally, the court demonstrated its unwillingness to depart by imposing a prison term greater than the minimum of the applicable guideline range. See United States v. Sanchez, 914 F.2d 1355, 1363 (9th Cir. 1990); see also United States v. Williams, 898 F.2d 1400, 1403 (9th Cir. 1990) (declining to review district court's refusal to depart despite its belief it lacked authority because court indicated unwillingness to depart if it had authority). Accordingly, we lack jurisdiction to review the district court's discretionary refusal to depart downward. See Calozza, slip. op. at 10544-45.

DISMISSED.