United States of America v. Juan Rodriguez-Rocha

145 F.3d 1343 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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. Juan RODRIGUEZ-ROCHA, Defendant - Appellant. No. 97-10509. D.C. No. CR-96-00835-3-JMR. United States Court of Appeals, Ninth Circuit. Submitted June 8, 1998**. Decided June 12, 1998. Appeal from the United States District Court for the District of Arizona, John M. Roll, District Judge, Presiding. Before REINHARDT, THOMPSON, and LEAVY, Circuit Judges. [1] MEMORANDUM* [2] Juan Rodriguez-Rocha appeals his sentence imposed following his guilty plea to escaping from custody in violation of 18 U.S.C. § 751. [3] Rodriguez contends that the district court erred by refusing to grant a downward departure for overrepresentation of his criminal history. Because the record conclusively shows that the district court was aware of its authority to depart from the sentencing guidelines, we have no jurisdiction to review the court's discretionary refusal to do so. See United States v. Gutierrez-Cervantes, 132 F.3d 460, 462-63 (9th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 869, 139 L.Ed.2d 766 (1998). DISMISSED.1 Footnotes [-s-s] ** The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a); 9th Cir.R. 34-4 [-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 [1] Rodriguez-Rocha's argument that the district court's refusal to depart was based upon a mistake of law and, consequently, can be reviewed by this Court under United States v. Eureka Laboratories, 103 F.3d 908 (9th Cir.1996), is without merit