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NOT FOR PUBLICATION.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 District of Montana, Donald W. Molloy, District Judge, Presiding.
Before RYMER, KLEINFELD and FISHER, Circuit Judges.
Page 450.
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.
Ricardo Bautista-Ramos appeals the seventy-seven month sentence imposed following his guilty plea conviction for illegal reentry by a previously deported alien in violation of 8 U.S.C. § 1326. We dismiss for lack of jurisdiction.
Bautista-Ramos contends he is entitled to a "horizontal" departure under U.S. S.G. § 4A1.3 because his criminal history category overstated the seriousness of his criminal conduct and the district court failed to consider mitigating facts underlying his prior convictions.
A district court's discretionary refusal to depart from a prescribed sentencing guideline range is unreviewable on appeal unless the district court rested its decision on an erroneous belief that it lacked the authority to depart. United States v. Rivera-Sanchez, 222 F.3d 1057, 1064 (9th Cir.2000). Because the district court recognized its authority to depart, we lack jurisdiction to review Bautista-Ramos's sentence. See id.
DISMISSED.