46 F.3d 1146
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America,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.William Walter CAPPS, aka Barry Capps, Defendant-Appellant.
No. 94-30231.
United States Court of Appeals, Ninth Circuit.
Submitted:  Jan. 25, 1995.*Decided:  Jan. 31, 1995.

Before:  WALLACE, Chief Judge, HALL and KLEINFELD, Circuit Judges.


1
MEMORANDUM**


2
William Walter Capps appeals his sentence under the Sentencing Guidelines for his guilty plea conviction to manufacture of marijuana in violation of 21 U.S.C. Sec. 841(a)(1).  He alleges that the district court erred in not departing downward, because he was growing the marijuana to give to terminally ill friends which was a "lesser harm" entitling him to a departure under U.S.S.G. Sec. 5K2.11.  "The record fails to suggest that the district court was under the impression that it could not depart downward if it chose to do so."  U.S. v. Heim, 15 F.3d 830, 833 (9th Cir.), cert. denied, 115 Sup.  Ct. 55 U.S.  (1994).  Accordingly, the district court's refusal to depart is not reviewable on appeal.  Id.


3
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


