Valencia-Garcia

MEMORANDUM **

Jeronimo Valencia-Garcia appeals the sentence imposed by the district court following his plea of guilty to being an alien in the United States after deportation in violation of 8 U.S.C. § 1326 . We have jurisdiction under 28 U.S.C. § 1291 and we dismiss in part for lack of jurisdiction and affirm in part.

*174 I

“This court lacks jurisdiction to review a district court’s discretionary refusal to depart downward when sentencing a defendant under the Sentencing Guidelines.” United States v. Berger, 103 F.3d 67, 69 (9th Cir.1996). However, where “the district court erroneously believed that it lacked the power to depart” we may review its decision not to downward depart. Id. A decision “to deny downward departure will be considered discretionary unless the district court indicates that its refusal to depart rests on its view that it could not as a matter of law do so.” United States v. Pinto, 48 F.3d 384, 389 (9th Cir.1995).

Valencia-Garcia argues that the district court made an improper statement of law when it said that “the court determines that there is no language that articulates a departure based on a conviction that is over 5 years old. The motion for…