120 F.3d 269
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America, Plaintiff-Appellee,v.Francisco BERNAL, Defendant-Appellant.
No. 96-10421.
United States Court of Appeals, Ninth Circuit.
Submitted July 22, 1997.**Decided July 24, 1997.

Before:  HUG, Chief Judge, KOZINSKI and LEAVY, Circuit Judges.


1
MEMORANDUM*


2
Derek Gaines appeals his sentence imposed following his guilty plea to one count of conspiracy to possess with intent to distribute a substance containing cocaine base in violation of 21 U.S.C. § 846, and one count of possession with intent to distribute a substance containing cocaine base in violation of 21 U.S.C. § 841(a)(1).  Gaines asserts that the district court erred in denying his motion for downward departure.  In his motion, Gaines argued that the district court should depart below the presumptively applicable guidelines range on the ground that his offense was an act of aberrant behavior.  The district court denied the defendant's motion after finding that the defendant's conduct was not a single, spontaneous act.


3
We do not have jurisdiction to review the district court's discretionary decision not to depart from the Sentencing Guidelines.  See United States v. Eaton, 31 F.3d 789, 792 (9th Cir.1994).  Accordingly, we dismiss this appeal.


4
DISMISSED.



**
 The panel unanimously finds this case suitable for decision without oral argument.  See Fed.  R.App. P. 34(a);  9th Cir.  R. 34-4


*
 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


