United States of America, Plaintiff-appellee, v. Stephen Lee Ellis, Defendant-appellant, 76 F.3d 389 (9th Cir. 1996)

MEMORANDUM^** 

Stephen Lee Ellis appeals his sentence under the Sentencing Guidelines imposed following his guilty plea conviction for four counts of bank robbery. We dismiss the appeal for lack of jurisdiction.

We have jurisdiction to review the district court's refusal to depart downward only if the court concluded that it did not have the discretion to depart. United States v. Cantu, 12 F.3d 1506, 1510 (9th Cir. 1993). Aberrant behavior is a permissible basis for departure. United States v. Takai, 941 F.2d 738, 743 (9th Cir. 1991).

Ellis contends that the district court failed to exercise its discretion to depart based on aberrant behavior because it erroneously considered his drug addiction. See, e.g., United States v. Koon, 34 F.3d 1416 (9th Cir. 1994). We disagree. It is apparent from the record that the sentencing court was aware of its authority to depart on the permissible grounds offered by Ellis, and declined to do so. Absent some indication that the district court believed it lacked authority to depart, this court lacks jurisdiction to review the district court's discretionary refusal to depart downward. See United States v. Heim, 15 F.3d 830, 833 (9th Cir.), cert. denied, 115 S. Ct. 55 (1994).

DISMISSED.