988 F.2d 126
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America,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.Thomas Joseph TRAINER, Defendant-Appellant.
No. 92-30110.
United States Court of Appeals, Ninth Circuit.
Submitted Feb. 22, 1993.*Decided Feb. 26, 1993.

Appeal from the United States District Court for the District of Oregon, No. CR-91-60144-2-MRH;  Owen M. Panner, Chief Judge, Presiding.
D.Or.
DISMISSED.
Before GOODWIN, SCHROEDER and CANBY, Circuit Judges.


1
MEMORANDUM**


2
Thomas Joseph Trainer appeals his sentence imposed following entry of a guilty plea to manufacturing marijuana in violation of 21 U.S.C. 841(a)(1).   Trainer contends that the district court erred by determining that it did not have discretion to depart downward on the basis of youthful lack of guidance.   We dismiss the appeal for lack of jurisdiction.


3
A district court's discretionary refusal to depart downward from the Guidelines is not reviewable on appeal.   United States v. Belden, 957 F.2d 671, 676 (9th Cir.), cert. denied, 113 S.Ct. 234 (1992).   However, a district court's legal determination that it lacked authority to depart is reviewable on appeal.   Id.  In  United States v. Floyd, 945 F.2d 1096, 1099 (9th Cir.1991), we held that a district court may depart downward on the basis of a defendant's youthful lack of guidance.


4
Here, the district court clearly recognized its authority to depart on the basis of youthful lack of guidance.1  The court stated, however, that it did not believe that the instant case fell within the parameters of youthful lack of guidance.   The court's additional comments regarding its opinion of the Ninth Circuit position on youthful lack of guidance do not diminish the fact that the court exercised its discretion in denying the departure.2


5
Because the district court exercised its discretion in denying the downward departure, we dismiss the appeal for lack of jurisdiction.   See Belden, 957 F.2d at 676.


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.   Accordingly, Trainer's request for oral argument is denied


**
 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
 Though such a departure was available at the time of Trainer's sentencing, it is not available as of November 1, 1992.   The 1992 Sentencing Guidelines specifically abolish the "youthful lack of guidance" factor as a basis for departure.   See U.S.S.G. § 5H1.12 (1992)


2
 The district court stated:  "The Ninth Circuit in its decision on [youthful lack of guidance] has created an impossible situation for trial courts.   I must take this opportunity to say that as I do regularly."


