91 F.3d 156
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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.
Roberto FLORES-GARCIA, Defendant-Appellant.
No. 95-50498.
United States Court of Appeals, Ninth Circuit.
Submitted June 25, 1996.*
Decided June 28, 1996.
Before: NOONAN, LEAVY, and TASHIMA, Circuit Judges.
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.
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4. Accordingly, Flores-Garcia's request for oral argument is denied
This disposition is not appropriate for publication and may not be cited to or by the courts of this court except as provided by 9th Cir.R. 36-3