963 F. 2d 380 - United States v. Long

Appeal from the United States District Court for the District of Oregon; No. CR-91-69-HJR, Helen J. Frye, District Judge, Presiding.

D.Or.

AFFIRMED.

Before: WALLACE, Chief Judge, GOODWIN, Circuit Judge, and LEVI, District Judge.**

MEMORANDUM***

Appellant Richard Allan Long asserts that the district court erred in refusing to depart downward from the applicable Sentencing Guideline because the court failed to consider the effect of his alcoholism on his criminal history. We affirm.

A district court's refusal to exercise its discretion to depart downward from the Guidelines is not reviewable on appeal. United States v. Morales, 898 F.2d 99 (9th Cir.1990); cf. 18 U.S.C. § 3742(a). Long asserts that his claim is not barred by Morales because here the district court erroneously considered the effect of his alcoholism only in relation to the charged crime, and not in relation to his criminal history. Since the district court did not consider the asserted basis for a downward departure, Long argues, his claim is reviewable.

Long's position is not supported by a fair reading of the record. After defense counsel argued that Long's criminal history was overstated because of his involvement with alcohol, the district court stated:

I do decline to find that his criminal history is overstated.... He's been convicted of bank robbery in the United States District Court for the Northern District of California and has been convicted of the crime of robbery in the Superior Court, the State of California.

In short, the district court considered whether Long's criminal history was overstated, and declined to exercise its discretion to depart downward. Such a refusal to depart from the Guidelines is not reviewable by this court. See Morales, 898 F.2d at 102-03.

AFFIRMED.