United States of America, Plaintiff-appellee, v. Gail Y. Cleveland, Aka Gail Marshall, Defendant-appellant, 9 F.3d 1554 (9th Cir. 1993)

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US Court of Appeals for the Ninth Circuit - 9 F.3d 1554 (9th Cir. 1993)

Submitted Nov. 1, 1993. *Decided Nov. 10, 1993

Before: SCHROEDER, D.W. NELSON, and THOMPSON, Circuit Judges.


Gail Yvonne Cleveland appeals her 144-month sentence imposed following entry of her guilty plea to possession with intent to distribute cocaine and cocaine base in violation of 21 U.S.C. § 841(a) (1) and use of a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. § 922(c) (1).

Counsel for Cleveland filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), which identified one possible issue for review: whether the district court properly refused to depart downward as recommended by the probation officer. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Where as here, the district court understood that it had legal authority to depart downward from the Guidelines sentencing range but chose not to do so, we lack jurisdiction to review the refusal to depart downward. See United States v. Belden, 957 F.2d 671, 676 (9th Cir.), cert. denied, 113 S. Ct. 234 (1992).

Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 83 (1988) discloses no other issues for review. The motion of counsel to withdraw is GRANTED and the judgment is AFFIRMED.


The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3