concurring in part and dissenting in part.
I concur in Part I of the majority’s opinion and respectfully dissent from Part II.
The majority remands this appeal for resentencing because “the district court did not expressly acknowledge that it understood it had the authority to depart.”1 We are to remand for clarification when “we are unable to determine from the record whether the district court’s ruling was an exercise of its discretion or a legal ruling” that it did not have the authority to depart.2 But doubt does not exist merely because the judge does not “expressly acknowledge” that he has the authority to depart. The law is the opposite.3
Here, the district court clearly indicated its understanding of its authority to depart from the guidelines. In discussing possible sentences if the defendant again entered the United States illegally, the court stated, “And quite frankly, it’s going to get worse, not better. In fact, the sentencing commission is trying to take out any possible departures.” This quote indicates that the district court understood that it currently possessed authority to depart.
Further, in imposing sentence, the district court stated, “I’ll treat you as a criminal history category V, but the sentence is still going to be 51 months in custody. The range for V is 46 to 57 ... That’s the best I can do.” If, as the defendant argues, the district court would have sentenced him to less time but for its mistaken belief that it could not depart, the logical sentence would have been 46 months, the bottom of the guidelines range. That the judge chose to sentence Arellano-Gallegos to 51 months, a term right in the middle of the applicable range, in combination with the judge’s comment about the possibility of departures being disallowed in the future, leaves me with no doubt that the judge understood his authority to depart but declined to do so. That being so, we lack jurisdiction to review the court’s decision.4
. Op. at 968.
. United States v. Dickey, 924 F.2d 836, 839 (9th Cir.1991).
. See United States v. Garcia-Garcia, 927 F.2d 489 (9th Cir.1991) (“We hold ... that the district court has no obligation affirmatively to state that it has authority to depart when it sentences within the guideline range instead of departing. Therefore failure to depart, when the record is silent on the issue of authority, and sentence is imposed within the applicable guideline range, is not unlawful and is not appealable on that basis.”).
. United States v. Smith, 330 F.3d 1209, 1212 (9th Cir.2003).