Conde

MEMORANDUM **

Carlos Adalberto Conde (“Appellant”) appeals the sentence of the district court after pleading guilty to four counts of bank robbery in violation of 18 U.S.C. § 2113 (a). Appellant contends that the district court (1) applied the wrong standard in refusing to grant Appellant’s motion for a downward departure for diminished capacity pursuant to United States Sentencing Guideline § 5K2.13 and (2) improperly relied upon the belief that all bank robberies inherently involve a threat of violence in denying Appellant’s motion. Appellant argues that his motion for departure should have been granted by the district court because of his bipolar condition. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We affirm.

The district court’s refusal to exercise its discretion to depart downward cannot be reviewed by this court. United States v. Eaton, 31 F.3d 789, 792 (9th Cir.1994). However, if the district court’s refusal to depart was based upon a determination that it did not possess the authority to do so, that decision is reviewed de novo. Id. at 793 .

In the present case, the record clearly demonstrates that the district court was aware that it possessed the…