Opinion
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Appeal from the United States District Court for the Western District of Washington, Jack E. Tanner, Senior Judge, Presiding. D.C. No. CR-02-05765-003-JET.
Douglas James Hill, Esq., Tacoma, WA, Helen J. Brunner, Esq., Seattle, WA, for Plaintiff-Appellee.
Omodare Bruce Jupiter, Esq., Seattle, WA, for Defendant-Appellant.
Before: HALL, O'SCANNLAIN, and RYMER, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Javier Gonzalez-Huerta appeals the 46-month sentence imposed following his guilty-plea conviction for use of a communications facility to facilitate the illegal possession and distribution of pseudoephedrine, in violation of 21 U.S.C. § 843(b). We dismiss.
Gonzalez-Huerta contends the district court applied an incorrect legal standard
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when it denied his request for a downward departure under U.S. S.G. § 5K2.13, based on his reduced mental capacity. The record does not support Gonzalez-Huerta's contention. The sentencing transcript indicates that the district court expressly referred to the applicable sentencing guideline after considering extensive testimony and argument regarding Gonzalez-Huerta's mental and emotional state, and concluded that there was not sufficient evidence to support a mental capacity departure. In such cases, we do not review the district court's discretionary refusal to grant a defendant's request for departure. See United States v. Davis, 264 F.3d 813, 815 (9th Cir.2001).
DISMISSED.