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NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES OF AMERICA,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.Antonio SANCHEZ-RODRIGUEZ, Defendant-Appellant.
No. 97-50218.
United States Court of Appeals, Ninth Circuit.
May 22, 1998.

Appeal from the United States District Court for the Southern District of California.
Before: SCHROEDER, TROTT, and FERNANDEZ, Circuit Judges.

MEMORANDUM1
THOMPSON, Senior J., Presiding
Submitted May 14, 19982

1
Antonio Sanchez-Rodriguez appeals his conviction, pursuant to a guilty plea, and sentence for being a deported alien found in the United States in violation of 18 U.S.C. § 1326(a) and (b)(1).  Sanchez-Rodriguez contends that the district court failed to recognize its discretion to depart downward, pursuant to U.S.S.G. § 5K2.0, based on his agreement to stipulate to an order of deportation and his waiver of his right to challenge the deportation.


2
We have examined a transcript of the sentencing hearing and conclude that the district court recognized its discretion to depart downward.  We lack jurisdiction to consider the district court's discretionary decision not to depart downward.  See United States v. Lipman, 133 F.3d 726, 729 (9th Cir.1998).


3
DISMISSED.



1
 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


2
 The panel unanimously finds this case suitable for decision without oral argument.  See Fed.  R.App. P. 34(a); 9th Cir.  R. 34-4


