United States of America, Plaintiff-appellee, v. Jonathan Edward Brown, Defendant-appellant, 52 F.3d 335 (9th Cir. 1995)

Before: SCHROEDER and KLEINFELD, Circuit Judges, and KING,^**  District Judge.

MEMORANDUM^*** 

Jonathan Edward Brown appeals from his conviction and 75-month sentence after pleading guilty to two counts of unarmed bank robbery, in violation of 18 U.S.C. § 2113(a).

Brown argues on appeal that the court erred in not specifically enforcing the pre-indictment plea agreement. We assume the argument was properly preserved for appeal. The district court found that there was no such agreement. After carefully considering the representations made by the participants, the judge found that there were preindictment negotiations "but no preindictement agreement." We review for clear error, United States v. Helmandollar, 852 F.2d 498, 501 (9th Cir. 1988), and find none. The record contains ample evidence for the district judge's finding. Because there was no plea agreement, there is nothing to specifically enforce.

Finally, the trial court exercised its discretion in refusing to depart downward because of some sort of pre-indictment negotiations or misrepresentations. Discretionary refusals to depart downward are not subject to review on appeal. United States v. Morales, 898 F.2d 99 (9th Cir. 1990).

AFFIRMED.