145 F.3d 1343
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.United States of America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.Jose Hugo VALENCIA, Defendant-Appellant.
No. 97-30055.DC No. CR-96-00017-PGH.
United States Court of Appeals, Ninth Circuit.
Submitted** Dec. 2, 1997.Decided May 15, 1998.

Appeal from the United States District Court for the District of Montana, Paul G. Hatfield, Senior District Judge, Presiding.
Before REAVLEY,*** BOOCHEVER, and KLEINFELD, Circuit Judges.


1
MEMORANDUM*


2
Valencia's argument that the district court erred when it failed to address his argument for downward departure is resolved by our decisions in United States v. Berger, 103 F.3d 1156, 1167-70 (9th Cir.1996), cert. denied, 117 S.Ct. 1456 (1997), and United States v. Webster, 108 F.3d 1156, 1158-59 (9th Cir.1997), in which, subsequent to the decision in Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), we held that a sentencing court's silent exercise of its discretion not to depart downward is unreviewable.  AFFIRMED.



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


**
 * Honorable Thomas M. Reavley, Senior United States Circuit Judge for the Fifth Circuit Court of Appeals, sitting by designation


*
 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


