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applying Cassidy's standard to factual allegations made in support of any Rule 60(b) motion
Summary of this case from Seeley v. Portland Pub. Schs.Opinion
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4.
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Appeal from the United States District Court for the Central District of California, No. CR-92-0163-WDK; William D. Keller, District Judge, Presiding.
C.D.Cal.
AFFIRMED.
Before: WALLACE, Chief Judge, HUG 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 9th Cir.R. 36-3.
Tommie Darrell Whitson appeals the 168-month sentence imposed following his plea of guilty to bank robbery in violation of 18 U.S.C. § 2113(a). Whitson contends the district court erred by refusing to depart downward from the applicable Guidelines range based upon the failure of the prison and probation systems to provide him with promised supervision and drug treatment. We lack jurisdiction to review this claim, and we dismiss.
We are without jurisdiction to review a district court's discretionary refusal to depart downward from the Sentencing Guidelines. United States v. Rivera, 996 F.2d 993, 997 (1993). "The [district] court's silence regarding authority to depart is not sufficient to indicate that the court believed it lacked power to depart." United States v. Garcia-Garcia, 927 F.2d 489, 491 (9th Cir.1991) (per curiam).
Here, Whitson's counsel argued that Whitson should have been treated for addiction per order of the Bureau of Prisons upon his release from a prior term of incarceration. He claimed that inadequate parole supervision had allowed Whitson to relapse into addiction, and he moved for a downward departure on that basis.
The district court stated, "I don't happen to be one of those courts that is going to depart everytime I can...." The court concluded, "I understand your argument. It doesn't pass analytical muster, so I will take it into consideration at sentencing and I will not take it into consideration on a downward departure," and proceeded to sentence Whitson to the lowest possible sentence within the appropriate Guidelines range.
We are satisfied, in light of these statements, that the district court's refusal to depart was discretionary. Therefore, we lack jurisdiction to review this appeal. See Rivera, 996 F.2d at 997.
AFFIRMED.