127 F.3d 1108
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America,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.Rodney Chandler TUFTS, Defendant-Appellant.
No. 97-30048.
United States Court of Appeals, Ninth Circuit.
Submitted October 20, 1997.**Decided Oct. 27, 1997.

Appeal from the United States District Court for the District of Oregon Robert E. Jones, District Judge, Presiding
Before THOMPSON, T.G. NELSON, and KLEINFELD, Circuit Judges.


1
MEMORANDUM*


2
Rodney Chandler Tufts appeals his 30-month sentence imposed after his guilty plea to conspiracy against the rights of citizens (18 U.S.C. § 241) when he and his codefendants burned a cross in a black man's yard.  We dismiss the appeal.


3
Tufts contends that the district court erred by not departing downward because his criminal history overstated the seriousness of his prior criminal conduct.  We lack jurisdiction to review a district court's denial of a downward departure if it was discretionary and did not rest upon the court's belief that it lacked legal authority to depart.  See United States v. Makowski, 120 F.3d 1078, 1082 (9th Cir.1997).  The district court's failure to give any reasons for denying a downward departure is not sufficient to indicate that the court believed that it lacked power to depart.  See United States v. Berger, 103 F.3d 67, 70 (9th Cir.1996), cert. denied, 117 S.Ct. 1456 (1997).


4
Accordingly, because nothing in the record indicates that the district court believed that it lacked the authority to depart, we lack jurisdiction to review the sentence and dismiss the appeal.  See Makowski, 120 F.3d at 1082.1


5
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


1
 We deny without prejudice Tufts' pending motion for substitution of counsel


