124 F.3d 214
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America,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.Martin Antonio HUERTAS-FLORES, Defendant-Appellant.
No. 97-50038.
United States Court of Appeals, Ninth Circuit.
Submitted September 8, 1997.**Filed September 15, 1997.

Appeal from the United States District Court for the Southern District of California, D.C. No. CR-96-01355-LCN;  Leland C. Nielsen, District Judge, Presiding.
Before HALL, BRUNETTI, and THOMAS, Circuit Judges.


1
MEMORANDUM*


2
Martin Antonio Huertas-Flores appeals his sentence imposed by the district court following his guilty plea conviction for illegal reentry by a previously deported alien in violation of 8 U.S.C. § 1326(a), (b)(1).  We dismiss.


3
Huertas-Flores contends that the district court erred by denying his request for a two-level downward departure under U.S.S.G. § 5K2.0 in recognition of his willingness to stipulate to deportation and to waive any rights to a contested deportation hearing.  There is no indication in the record, however, that the district. court's refusal to depart was based on the belief that it could not do so as a matter of law.  See United States v. Pinto, 48 F.3d 384, 389 (9th Cir.1995).  Accordingly, the district court's decision to deny Huertas-Flores' request for a downward departure is not reviewable on appeal.  See United States v. Webster, 108 F.3d 1156, 1159 (9th Cir.1997) (district court "need not say affirmatively that it had the discretion to depart");  United States v. Garcia-Garcia, 927 F.2d 489, 491 (9th Cir.1991) (per curiam) (same).


4
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 pro-vided by 9th Cir.R. 36-3


