35 F.3d 573
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America,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.Eric Thomas MONTGOMERY, Defendant-Appellant.
No. 93-50566.
United States Court of Appeals, Ninth Circuit.
Submitted Aug. 2, 1994.*Decided Sept. 7, 1994.

Before:  BROWNING, FARRIS, and LEAVY, Circuit Judges.
MEMORANDUM**
Eric Thomas Montgomery, a convicted bank robber, appeals from his sentence following entry of a guilty plea, arguing that the district court erred by imposing a two-level enhancement for obstruction of justice based on a finding of reckless endangerment during flight, and by failing to depart downward further than it did.


1
With respect to the first issue, we note that Montgomery was not the driver of the getaway car, and the sentence of a getaway car passenger may not be enhanced under U.S.S.G. Sec. 3C1.2 unless the district court "specif[ies] in the record its reasons for holding the passenger[ ] responsible for the driver's conduct."   United States v. Young, --- F.3d ----, ----, Nos. 93-50186 & 93-50229, slip op. 6089, 6093 (9th Cir.  June 7, 1994).  In the absence of such a finding, the sentence must be vacated and the case remanded for further proceedings.  See id.


2
As for the second issue, "[A] district court's discretionary decision not to depart from the sentencing guidelines is not reviewable on appeal unless the district court erroneously believed it had no discretion."   United States v. Jones, 24 F.3d 1177, 1179 (9th Cir.1994) (citations omitted).  It is clear from the court's ruling that it knew it had the discretion to depart further if it so chose, but elected not to do so in the light of its decision to depart substantially from the recommended sentence on other grounds.  Accordingly, this portion of the appeal must be dismissed for want of jurisdiction.


3
VACATED and REMANDED for resentencing.



*
 This case is appropriate for submission on the briefs and without oral argument per Fed.R.App.P. 34(a) and 9th Cir.R. 34-4


**
 This disposition is not suitable for publication and may not be cited to or by the courts of this Circuit except as provided by 9th Cir.R. 36-3


