United States of America, Plaintiff-appellee, v. Zoel Rivera-flores, Defendant-appellant, 87 F.3d 1325 (9th Cir. 1996)

MEMORANDUM^** 

Zoel Rivera-Flores appeals his sentence under the Sentencing Guidelines imposed following his guilty plea conviction for importation of cocaine. Rivera-Flores contends that the district court erred by denying his motion for a downward departure in sentence on the ground that this was a single act of aberrant behavior. 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).

Rivera-Flores asserts the district court believed it could not depart downward because Rivera-Flores had solicited the drug smuggling job. We disagree. It is apparent from the record that the district court was aware of its authority to depart on the permissible grounds offered by Rivera-Flores, and declined to do so. Absent some indication that the district court believed it lacked authority to depart, this court may not review the district court's discretionary refusal to depart downward. See United States v. Pinto, 48 F.3d 384, 389 (9th Cir.), cert. denied, 116 S. Ct. 125 (1995); United States v. Riggins, 40 F.3d 1055, 1058 (9th Cir. 1994); United States v. Heim, 15 F.3d 830, 833 (9th Cir.), cert. denied, 115 S. Ct. 55 (1994).

DISMISSED.