Monroe

MEMORANDUM **

Rodney Roy Monroe appeals from his sentence following a guilty plea to being a felon in possession of a firearm in violation of 18 U.S.C. § 922 (g)(1), and possession of a firearm with an obliterated serial number in violation of 18 U.S.C. § 922 (k). We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

Monroe challenges the district court’s failure to depart downward pursuant to U.S.S.G. § 5H1.4, which provides that although physical condition is not ordinarily a permitted basis for departure, “an extraordinary physical impairment may be a reason to depart downward.” The district court first made the factual finding that Monroe’s kidney disease did not constitute an extraordinary physical impairment. See United States v. Martinez-Guerrero, 987 F.2d 618, 620 (9th Cir.1993) (to analyze departure request under § 5H1.4, first *605 step is factual finding of extraordinary impairment). We review that factual finding for clear error. See id.

The court considered the testimony of Monroe and his mother, as well as his medical records. The evidence showed that although intermittent flare-ups of Monroe’s disease made him gain weight and feel tired, he largely…

dissenting.

SKOPIL, Senior Circuit Judge.

I dissent because I believe we lack jurisdiction to review Monroe’s contention that the district court erred by not departing downward. We have long held that 18 U.S.C. § 3742 (a) “precludes appellate review of a district court’s discretionary refusal to depart downward from the guidelines.” See United States v. Morales, 898 F.2d 99, 101 (9th Cir.1990); see also United States v. Linn, 362 F.3d 1261, 1262 (9th Cir.2004) (“It is settled law that 18 U.S.C. § 3742 strips us of jurisdiction to review a discretionary denial of a downward departure.”).

There are clear indications in this case that the district court’s decision not to depart downward was wholly discretionary. The district judge, after reviewing the parties’ submissions, stated that “I am not going to exercise my discretion and make a downward departure based on 5H1.4.” The court thereafter summarized the underlying facts regarding Monroe’s claim of extraordinary physical impairment and again stated “I’m not going to exercise my discretion to make a downward departure.”

Notwithstanding these statements, the majority reviews the district court’s decision not to depart by…