Thadhani

MEMORANDUM

Vinod Thadhani appeals the 12-month séntence imposed following his guilty plea to conspiracy to commit access device fraud and to possess stolen mail, in violation 18 U.S.C. § 371 . We dismiss for lack of jurisdiction.

Thadhani challenges that the district court’s denial of his request for a downward departure on the basis of aberrant behavior pursuant to 'U.S.S.G. § 5K2.20. He contends that the “court wrongly believed that [a departure based on] aberrant behavior [is] limited to a single act or occurrence.”

The record before us does not contain any indication that the district court felt it could not depart as a matter of law, and at sentencing neither party argued that the district court lacked authority to depart. The parties merely took contrary positions on whether the district court should depart in this particular case. See United States v. Berger, 103 F.3d 67, 70 (9th Cir.1996) (stating that a decision to deny downward departure will be considered discretionary unless the district court indicates that its refusal to depart rests on its belief that it could not do so as a matter of law); United States v. Jackson, 986 F.2d 312, 314 (9th Cir.1993) (stating…