United States v. Jose Menjares-Carranza

73 F.3d 371 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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. Jose MENJARES-CARRANZA, Defendant-Appellant. No. 95-50263. United States Court of Appeals, Ninth Circuit. Submitted Dec. 19, 1995. * Decided Dec. 29, 1995. Before: SNEED, TROTT, and HAWKINS, Circuit Judges. 1 MEMORANDUM ** 2 Jose Menjares-Carranza appeals his sentence under the Sentencing Guidelines for his conviction of being an alien found in the United States following deportation and conviction in violation of 8 U.S.C. Sec. 1326 (a)(b)(1). Menjares-Carranza contends the district court erred in not recognizing its discretion to depart downward from his sentencing range. 3 Where a district judge indicates that "even if he had the authority to depart, there were no facts to justify departing downward," such a finding constitutes a discretionary refusal to depart, and this court is without jurisdiction to review it. United States v. Williams, 898 F.2d 1400, 1403…