8 F.3d 32
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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.
Jose Roberto MORENO, Defendant-Appellant.
No. 93-50147.
United States Court of Appeals, Ninth Circuit.
Submitted Sept. 20, 1993.*
Decided Sept. 29, 1993.
Before: FLETCHER, POOLE, and O'SCANNLAIN, Circuit Judges.
MEMORANDUM**
Jose Roberto Moreno appeals his 77-month sentence imposed following his guilty plea for illegal reentry after deportation in violation of 8 U.S.C. § 1326(a), (b)(1), and (b)(2). Moreno contends that the district court erred by ruling that it lacked authority to depart downward from the applicable Guidelines range based upon Moreno's alleged family hardship due to his inevitable deportation. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Generally, 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). We review de novo, however, a district court's legal determination that it lacked authority to depart downward. United States v. Belden, 957 F.2d 671, 676 (9th Cir.), cert. denied, 113 S.Ct. 234 (1992). " 'Family ties and responsibilities ... are not ordinarily relevant in determining whether a sentence should be outside the [G]uidelines.' " United States v. Berlier, 948 F.2d 1093, 1096 (9th Cir.1991) (quoting U.S.S.G. § 5H1.6).
At sentencing, Moreno requested the district court to determine whether, in formulating the Guidelines, the sentencing commission had considered the situation where a defendant like Moreno has substantial family ties in the United States. The court concluded that because the sentencing commission had adequately considered Moreno's family situation, the court lacked authority to depart downward. The court therefore sentenced Moreno to the low end of the Guidelines range.
Because Moreno's family ties and responsibilities cannot serve as a basis for a departure from the Guidelines range, the district court did not err by ruling that it lacked authority to depart on that basis. See Berlier, 948 F.2d at 1096.
AFFIRMED.