United States of America, Plaintiff-appellee, v. Juan Carlos Quiroz-mendez, Defendant-appellant, 24 F.3d 251 (9th Cir. 1994)

MEMORANDUM^** 

Juan Carlos Quiroz-Mendez appeals his 46-month sentence imposed following a guilty plea to illegal reentry following deportation subsequent to a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(b) (2). Quiroz-Mendez challenges the district court's refusal to depart downward from the applicable guideline range. We lack jurisdiction to review this claim, and we dismiss.

A district court's discretionary decision not to depart is not reviewable on appeal unless that decision resulted from a legal determination that the Guidelines preclude departure. United States v. Brown, 985 F.2d 478, 480 (9th Cir. 1993); see also United States v. Gardner, 988 F.2d 82, 84-85 (9th Cir. 1993) (per curiam).

At sentencing, Quiroz-Mendez requested that the district court depart downward from the guideline range upon the basis that the Sentencing Commission failed to adequately consider his status as a minor participant in the underlying heroin distribution conspiracy when it mandated a uniform 16-level enhancement.

The record reveals that the district court understood that it had the authority to depart under U.S.S.G. Sec. 5K2.0, but declined to exercise that authority: "Although I do have the discretion to depart downward, I don't exercise that discretion to depart downward." This discretionary decision is not reviewable. See Gardner, 988 F.2d at 84-85.

DISMISSED.