United States of America, Plaintiff-appellee, v. David Charles Lindahl, Defendant-appellant, 145 F.3d 1342 (9th Cir. 1998)

MEMORANDUM^* 

David Charles Lindahl appeals his 37-month sentence following his guilty plea to bank robbery, in violation of 18 U.S.C. § 2113(a). Lindahl contends that we have jurisdiction to review the district court's denial of a downward departure for aberrant behavior because the court misapplied the sentencing guidelines and applicable law.

We review de novo the district court's interpretation and application of the sentencing guidelines. See United States v. Lam, 20 F.3d 999, 1001 (9th Cir. 1994). We do not have jurisdiction to review a district court's discretionary decision not to depart from the sentencing guidelines. See id. at 1001; United States v. Morales, 898 F.2d 99, 103 (9th Cir. 1990). The district court's decision, however, is reviewable if it believed it did not have legal authority to depart, unless the court indicated that it would not depart if it could. See Lam, 20 F.3d at 1001.

Here, the district court specifically stated that it did not have "any trouble" saying that it had the discretion to depart because Lindahl's case was outside the heartland and not representative of other bank robbers. Nonetheless, after considering Lindahl's circumstances, the court declined to depart. Cf. United States v. Pierson, 121 F.3d 560, 564 (9th Cir. 1997). Because the district court's decision not to depart was discretionary and did not rest on the judge's belief that departure was prevented as a matter of law, its decision is not reviewable on appeal. See Lam, 20 F.3d at 1001.

AFFIRMED.