United States v. Kim Gibian

962 F.2d 15 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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. Kim GIBIAN, Defendant/Appellant. No. 91-50557. United States Court of Appeals, Ninth Circuit. Submitted May 4, 1992. * Decided May 11, 1992. 1 Before JAMES R. BROWNING and FARRIS, Circuit Judges, and CAULFIELD ** District Judge, sitting by designation. 2 MEMORANDUM *** 3 Kim Gibian appeals from the imposition of a thirty-three month custodial sentence following his conviction by guilty plea for violation of 21 U.S.C. § 841 (a)(1) and 18 U.S.C. § 2 . Gibian contends that the district court erred by failing to exercise its discretion to depart below the applicable guideline range. We find that the district court did in fact exercise its discretion. The decision not to depart from the guidelines is unappealable, and we dismiss. Jurisdiction 4 The district court had jurisdiction under 18 U.S.C. § 3231 as the underlying offense was committed in the Southern…