United States of America, Plaintiff-appellee, v. Francisco Suazo-oregon, Defendant-appellant, 122 F.3d 1075 (9th Cir. 1997)

MEMORANDUM^* 

Francisco Suazo-Oregon appeals his eighty-seven month sentence following his conviction by guilty plea for conspiracy to possess methamphetamine with the intent to distribute in violation of 21 U.S.C. §§ 846 and 841(a), and aiding and abetting the possession of methamphetamine with the intent to distribute in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a) (1). Suazo-Cregoh contends the district court erred by failing to grant a downward departure because this was his first offense and he is the primary care-provider of his three young children. We lack jurisdiction to review Suazo-Oregon's appeal and dismiss.

We lack jurisdiction to review a district court's discretionary decision not to depart downward when sentencing a defendant under the Sentencing Guidelines. See United States v. Webster, 108 F.3d 1156, 1158 (9th Cir. 1997). However, if the district court erroneously believed that it lacked the authority to depart, we may review the district court's decision not to depart downward. See United States v. Berger, 103 F.3d 67, 69 (9th Cir. 1996), cert. denied, 117 S. Ct. 1456 (1997).

Here, Suazo-Oregon did not request a downward departure based on family circumstances. He did request a downward departure based on substantial assistance to authorities and his agreement to be deported. The district court granted the downward departure for Suazo-Oregon's substantial assistance but denied the other request The district court stated it was aware of its discretion to depart but chose not to exercise it. Because Suazo-Oregon did not request a downward departure based on his family circumstances, and the district court recognized that it had the authority to depart downward, but chose not to, we lack jurisdiction to review Suazo-Oregon's appeal. See Webster, 108 F.3d at 1158.

DISMISSED.