United States of America, Plaintiff-appellee, v. Steven Scott, Defendant-appellant, 8 F.3d 33 (9th Cir. 1993)

Before: CHOY, GOODWIN, and SKOPIL, Circuit Judges

MEMORANDUM^** 

Steven Scott contends that he should be resentenced because the district court erroneously concluded that it lacked jurisdiction to depart from the sentencing guidelines on the basis of Scott's youthful lack of guidance. The record does not support Scott's contention, and we accordingly dismiss his appeal.

We review de novo a district court's legal determination that the guidelines do not allow departure. United States v. Belden, 957 F.2d 671, 676 (9th Cir.), cert. denied, 113 S. Ct. 234 (1992). If the record indicates, however, that the district court exercised its discretion in refusing to depart from the guidelines, that decision is not reviewable. United States v. Morales, 898 F.2d 99, 102 (9th Cir. 1990).

The record shows that the district court took Scott's youthful lack of guidance into account, and adjusted his sentence as much as it believed was warranted. Any ambiguity in the court's statement that Scott's childhood problems were not "grounds" for a downward departure is clarified by the court's indication that the sentence imposed was appropriate for the crime, "regardless of the underlying root causes."

The district judge stated that he was lowering the sentence by five months below the probation office's recommendation based on Scott's arguments for a downward departure. The resulting sentence was well above the minimum in the applicable sentencing range. If the district judge had believed that Scott's childhood problems warranted a sentence below that set by the guidelines, he would have set the sentence at the minimum within the applicable range. See United States v. Sanchez, 914 F.2d 1355, 1363 (9th Cir. 1990), cert. denied, 111 S. Ct. 1626 (1991). As the district judge exercised his discretion in refusing to depart from the guidelines, we lack jurisdiction to hear this appeal.

APPEAL DISMISSED.