United States of America, Plaintiff-appellee, v. Roberto Flores-garcia, Defendant-appellant, 91 F.3d 156 (9th Cir. 1996)

MEMORANDUM^** 

Roberto Flores-Garcia appeals his 63-month sentence following a guilty plea to being a deported alien found in the United States in violation of 8 U.S.C. § 1362(a) and (b) (2). Flores-Garcia contends that the district court erred by refusing to depart downward for extraordinary family responsibilities under U.S.S.G. § 5H1.6. We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

The district court's discretionary refusal to depart downward from the Sentencing Guidelines is not reviewable on appeal, unless the trial court indicated that it did not have legal authority to depart. United States v. Pinto, 48 F.3d 384, 389 (9th Cir.), cert. denied, 116 S. Ct. 125 (1995).

Here, Flores-Garcia argues that being unable to see his common law wife and child, who reside in the United States, is an extraordinary family circumstance that warrants downward departure. The district court refused to grant Flores-Garcia's request because the evidence presented did not amount to an extraordinary family circumstance which justified departure under U.S.S.G. § 5H1.6. Because the district court's refusal to depart was discretionary, we lack discretion to review the district court's refusal to depart downward. See Pinto, 48 F.3d at 389.

DISMISSED.