Rayos

MEMORANDUM

Ramon Monzón Rayos 3 appeals his guilty plea conviction and 46-month sentence imposed for being an alien found in the United States following deportation, in violation of 8 U.S.C. § 1326 . We have jurisdiction pursuant to 28 U.S.C. § 1294 , and we affirm.

Pursuant to Anders v. California, 386 U.S. 738 , 87 S.Ct. 1396 , 18 L.Ed.2d 493 (1967), Rayos’ counsel submitted a brief stating that he found no meritorious issues for review, but references three potential issues on appeal. Counsel also filed a motion to withdraw as counsel of record. Rayos has not filed a supplemental pro se brief.

Counsel first references the issue of whether the district court erred by refusing to grant Rayos’ request for downward departure based on overstatement of the seriousness of his criminal history and disparate treatment of defendants charged with illegal re-entry under section 1326. Because the record reflects that the district court did not misunderstand that it had the discretion to depart and chose not to, we are without jurisdiction to review this discretionary refusal to depart. See United States v. Webster, 108 F.3d 1156, 1158 (9th Cir.1997).

Counsel also raises the issue of…