United States v. Glenn Thomas , 19 F.3d 31 ( 1994 )

19 F.3d 31

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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

No. 93-50461.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 22, 1994.*
Decided Feb. 25, 1994.

Before: SCHROEDER, CANBY and WIGGINS, Circuit Judges.

1

MEMORANDUM**

2

Glenn Thomas appeals his 106-month sentence imposed following his guilty plea to armed bank robbery in violation of 18 U.S.C. Sec. 2113(a)(d) and using a firearm during a crime of violence in violation of 18 U.S.C. Sec. 924(c). Thomas contends the district court erred by denying him a downward departure pursuant to U.S.S.G. Sec. 5K2.12 based on imperfect duress. We have jurisdiction under 28 U.S.C. Sec. 1291 and affirm.

3

A district court's discretionary refusal to depart downward is not reviewable on appeal unless that decision was the result of a legal conclusion that the Guidelines preclude departure. United States v. Brown, 985 F.2d 478, 480 (9th Cir.1993); see also United States v. Gardner, 988 F.2d 82, 84 (9th Cir.1993) (per curiam).

4

At sentencing, Thomas requested a downward departure based upon evidence that he had participated in the bank robbery because an individual known as "Big Red Dog" had threatened to harm Thomas's mother if Thomas did not participate. The court denied the request for a departure and imposed a sentence at the high end of the Guidelines range.

5

The record shows that the court declined to exercise its discretion to depart based on imperfect duress. The court stated that although it believed that the threat had occurred, "the facts and circumstances laid out in the presentence report do not rise to the level of an imperfect duress defense case that would impel the Court to depart. And the Court will not depart." This discretionary decision is not reviewable. See Gardner, 988 F.2d at 84.

6

AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

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