116 F. 3d 488 - United States v. Veefkind

MEMORANDUM*

Carolyn R. DIMMICK, District Judge, Presiding.

Federal prisoner Stephen Veefkind pleaded guilty to one count of receipt of child pornography under 18 U.S.C. § 2252(a)(2). Veefkind appeals his sentence imposed under the United States Sentencing Guidelines and within the applicable guidelines range. We affirm.

"We lack jurisdiction to review a district court's discretionary refusal to depart downward from the Guidelines." United States v. Webster, 108 F.3d 1156, 1158 (9th Cir.1997). Veefkind contends, however, that the district court may have failed to depart downward based on an erroneous belief that it lacked the legal authority to do so. See United States v. Jackson, 986 F.2d 312, 314 (9th Cir.1993) (noting that district court's erroneous belief that it lacks authority to depart downward is an error of law reviewable on appeal). This contention is without merit.

At sentencing Veefkind urged numerous grounds for downward departure. After considering these grounds, the district court unequivocally stated, "I don't see any reason for downward departure, counsel. I will take into consideration everything you said in your report and the totality of the circumstances, but I see no reason for downward departure." These statements clearly indicate that the district court found no reason to depart, not that the district court believed it lacked legal authority to depart. See Webster, 108 F.3d at 1158 (noting that district court's comment that " 'I, frankly, do not see any grounds for departure' indicates that she found no reason to depart, not that she believed she lacked authority to do so"); see also United States v. Garcia-Garcia, 927 F.2d 489, 490-91 (9th Cir.1991) (finding that district court need not affirmatively state that it has discretion to depart downward). For this reason, we lack jurisdiction to consider Veefkind's appeal.

APPEAL DISMISSED.