Yerena

MEMORANDUM **

Jose Alfredo Yerena appeals his 97-month sentence following his conviction by jury for one count of conspiracy to distribute methamphetamine in violation of 21 U.S.C. § 846 , and one count of distribution of methamphetamine in violation of 21 U.S.C. § 841 (a)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

Yerena contends that the district court committed a substantive error by referring to its cautious estimate of the amount of methamphetamine and corresponding reduction of offense level as a “downward departure.” This contention lacks merit. Yerena has failed to articulate any negative effect that the court’s mischaracterization had on his sentencing. Accordingly, the misstatement was harmless. Cf. United States v. Mendoza, 121 F.3d 510, 513-14 (9th Cir.1997) (applying harmless error analysis).

Yerena also contends that the district court abused its discretion by refusing to depart based on an over-representation of his criminal history. The record shows that the district court was aware that it had the authority to depart and exercised its discretion in choosing not to do so. Accordingly, we lack jurisdiction to review this claim. See…