United States v. David Charles Lindahl , 145 F.3d 1342 ( 1998 )

145 F.3d 1342

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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.
David Charles LINDAHL, Defendant-Appellant.

No. 97-30278.
D.C. No. CR-96-00475-1-MFM.

United States Court of Appeals, Ninth Circuit.

Submitted May 14, 1998**.
Decided May 18, 1998.

Appeal from the United States District Court for the District of Oregon Malcolm F. Marsh, District Judge, Presiding.

Before SCHROEDER, TROTT, and FERNANDEZ, Circuit Judges.

1

MEMORANDUM*

2

David Charles Lindahl appeals his 37-month sentence following his guilty plea to bank robbery, in violation of 18 U.S.C. § 2113(a). Lindahl contends that we have jurisdiction to review the district court's denial of a downward departure for aberrant behavior because the court misapplied the sentencing guidelines and applicable law.

3

We review de novo the district court's interpretation and application of the sentencing guidelines. See United States v. Lam, 20 F.3d 999, 1001 (9th Cir.1994). We do not have jurisdiction to review a district court's discretionary decision not to depart from the sentencing guidelines. See id. at 1001; United States v. Morales, 898 F.2d 99, 103 (9th Cir.1990). The district court's decision, however, is reviewable if it believed it did not have legal authority to depart, unless the court indicated that it would not depart if it could. See Lam, 20 F.3d at 1001.

4

Here, the district court specifically stated that it did not have "any trouble" saying that it had the discretion to depart because Lindahl's case was outside the heartland and not representative of other bank robbers. Nonetheless, after considering Lindahl's circumstances, the court declined to depart. Cf. United States v. Pierson, 121 F.3d 560, 564 (9th Cir.1997). Because the district court's decision not to depart was discretionary and did not rest on the judge's belief that departure was prevented as a matter of law, its decision is not reviewable on appeal. See Lam, 20 F.3d at 1001.

5

AFFIRMED.

**

The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a); 9th Cir. R. 34-4. Accordingly, Lindahl'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 circuit except as provided by 9th Cir. R. 36-3