United States of America, Plaintiff-appellee, v. David Goudie, Defendant-appellant, 145 F.3d 1342 (9th Cir. 1998)

David M. Goudie appeals the 51 month sentence imposed by the district court following his guilty plea conviction for armed bank robbery in violation of 18 U.S.C. § 2113. Goudie contends that the district court erred by denying his motion for a downward departure in sentence on the ground that this was a single act of aberrant behavior. We have jurisdiction to review the district court's refusal to depart downward only if the court concluded that it did not have the discretion to depart. United States v. Cantu, 12 F.3d 1506, 1510 (9th Cir. 1993). Aberrant behavior is a permissible basis for departure. United States v. Takai, 941 F.2d 738, 743 (9th Cir. 1991).

Goudie asserts the district court confused the standards for acceptance of responsibility and aberrant conduct when it denied him the sentence reduction, and that this legal error gives us jurisdiction. We disagree. It is apparent from the record that the district court was aware of its authority to depart on the permissible grounds offered by Goudie, and declined to do so. Absent some indication that the district court believed it lacked authority to depart, this court may not review the district court's discretionary refusal to depart downward. See United States v. Webster, 108 F.3d 1156, 1158 (9th Cir. 1997); United States v. Riggins, 40 F.3d 1055, 1058 (9th Cir. 1994).

DISMISSED.