United States of America, Plaintiff-appellee, v. Gregory L. Wallace, Defendant-appellant, 142 F.3d 447 (9th Cir. 1998)

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U.S. Court of Appeals for the Ninth Circuit - 142 F.3d 447 (9th Cir. 1998) .Submitted April 20, 19982. Decided April 28, 1998

Appeal from the United States District Court for the District of Montana Jack D. Shanstrom, District Judge, Presiding.

Before BRUNETTI, RYMER and T.G. NELSON, Circuit Judges.


MEMORANDUM1 

Gregory L. Wallace appeals the sentence imposed following his jury conviction for aggravated assault. We dismiss.

Wallace contends that his 46-month sentence was "disproportionately high" because he would have received a lesser sentence had he killed the victim and been convicted of involuntary manslaughter. We construe Wallace's argument as an attempt to appeal the district court's denial of his request for a downward departure.

At the sentencing hearing, Wallace sought a downward departure on the ground that he would have received a lesser sentence had he been charged with and convicted of involuntary manslaughter. The district court denied his request. Because nothing in the record suggests that the district court was under the impression that it could not depart downward if it chose to do so, we lack jurisdiction to review the district court's decision. See United States v. Heim, 15 F.3d 830, 833 (9th Cir. 1994).

DISMISSED.

 2

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

 1

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

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