142 F.3d 447
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.United States of America,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.Gregory L. WALLACE, Defendant-Appellant.
No. 97-30333.D.C. No. CR-96-00079-1.
United States Court of Appeals,Ninth Circuit.
.Submitted April 20, 19982.Decided April 28, 1998.

Appeal from the United States District Court for the District of Montana Jack D. Shanstrom, District Judge, Presiding.
Before BRUNETTI, RYMER and T.G. NELSON, Circuit Judges.

MEMORANDUM1

1
Gregory L. Wallace appeals the sentence imposed following his jury conviction for aggravated assault.  We dismiss.


2
Wallace contends that his 46-month sentence was "disproportionately high" because he would have received a lesser sentence had he killed the victim and been convicted of involuntary manslaughter.  We construe Wallace's argument as an attempt to appeal the district court's denial of his request for a downward departure.


3
At the sentencing hearing, Wallace sought a downward departure on the ground that he would have received a lesser sentence had he been charged with and convicted of involuntary manslaughter.  The district court denied his request.  Because nothing in the record suggests that the district court was under the impression that it could not depart downward if it chose to do so, we lack jurisdiction to review the district court's decision.  See United States v. Heim, 15 F.3d 830, 833 (9th Cir.1994).


4
DISMISSED.



2
 The panel unanimously finds this case suitable for decision without oral argument.  See Fed.  R.App. P. 34(a);  9th Cir.  R. 34-4


1
 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


