United States of America, Plaintiff-appellee, v. Travis Gresham, Defendant-appellant, 8 F.3d 31 (9th Cir. 1993)

Before: BROWNING, SCHROEDER, and HALL, Circuit Judges

MEMORANDUM^** 

Travis Gresham contends that he should be resentenced because the sentencing magistrate judge erroneously concluded that she lacked jurisdiction to depart from the sentencing guidelines. The record does not support Gresham's contention, and accordingly, we dismiss his appeal.

We review the record de novo to determine if the district court erroneously concluded that it was not statutorily authorized to depart. United States v. Belden, 957 F.2d 671, 676 (9th Cir.), cert. denied, 113 S. Ct. 234 (1992). If we conclude that the district court's decision not to depart was discretionary, we must dismiss the appeal for lack of appellate jurisdiction. United States v. Morales, 898 F.2d 99, 102 (9th Cir. 1990).

The record shows that the magistrate judge evaluated Gresham's request for departure and declined to depart. We are satisfied by our review of the transcript that her decision was discretionary. The magistrate judge specifically indicated that her decision was based on the "evidence that is before me today," and that the guideline sentence was appropriate, "taking all necessary factors into account." Moreover, any ambiguity in her comments was dissipated by her subsequent statement that she expressly recognized that she had the authority to depart but found that there was not a reasonable basis in the evidence to do so.

APPEAL DISMISSED.