United States v. Michael David Thomas

33 F.3d 60 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Michael David THOMAS, Defendant-Appellant. No. 94-30044. United States Court of Appeals, Ninth Circuit. Submitted Aug. 23, 1994.* Decided Aug. 25, 1994. Before: WALLACE, Chief Judge, HUG and RYMER, Circuit Judges. — 1 — MEMORANDUM** — 2 — Michael David Thomas appeals the 63-month sentence imposed following his entry of guilty pleas to two counts of armed bank robbery in violation of 18 U.S.C. Sec. 2113(a), (d). Thomas contends the district court erroneously concluded that it lacked discretion to depart downward from the applicable Sentencing Guidelines sentencing range based upon Thomas' alleged aberrant behavior, extraordinary acceptance of responsibility, and/or the totality of the circumstances involved in the offense conduct. We dismiss the appeal. — 3 — A district court's discretionary refusal to depart downward from the Guidelines is not reviewable on appeal. United States v. Robinson, 958 F.2d 268, 272 (9th Cir.1992). — 4 — Thomas argued each of these grounds for departure to the district court before sentence was pronounced. The district court rejected these arguments, stating that "I cannot find an appropriate basis to depart in this case and decline to do so." This statement indicates that the decision not to depart was done so in an exercise of the district court's discretion. — 5 — Accordingly, we lack jurisdiction to review the district court's discretionary decision not to depart downward. See Robinson, 958 F.2d at 272. — 6 — DISMISSED. Footnotes [-s] * The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4 [-s-s] ** 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