24 F.3d 251NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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.Juan Carlos QUIROZ-MENDEZ, Defendant-Appellant.
No. 93-30362.
United States Court of Appeals, Ninth Circuit.
Submitted May 11, 1994.*Decided May 18, 1994.

Before:  HUG, D.W. NELSON, and FERNANDEZ, Circuit Judges.


1
MEMORANDUM**


2
Juan Carlos Quiroz-Mendez appeals his 46-month sentence imposed following a guilty plea to illegal reentry following deportation subsequent to a conviction for an aggravated felony, in violation of 8 U.S.C. Sec. 1326(b)(2).  Quiroz-Mendez challenges the district court's refusal to depart downward from the applicable guideline range.  We lack jurisdiction to review this claim, and we dismiss.


3
A district court's discretionary decision not to depart is not reviewable on appeal unless that decision resulted from a legal determination that the Guidelines preclude departure.   United States v. Brown, 985 F.2d 478, 480 (9th Cir.1993);   see also United States v. Gardner, 988 F.2d 82, 84-85 (9th Cir.1993) (per curiam).


4
At sentencing, Quiroz-Mendez requested that the district court depart downward from the guideline range upon the basis that the Sentencing Commission failed to adequately consider his status as a minor participant in the underlying heroin distribution conspiracy when it mandated a uniform 16-level enhancement.


5
The record reveals that the district court understood that it had the authority to depart under U.S.S.G. Sec. 5K2.0, but declined to exercise that authority:  "Although I do have the discretion to depart downward, I don't exercise that discretion to depart downward."   This discretionary decision is not reviewable.   See Gardner, 988 F.2d at 84-85.


6
DISMISSED.



*
 The panel unanimously finds this case suitable for decision without oral argument.  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


