116 F.3d 487

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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.
Rodney Lynn MCWATTERS, Defendant-Appellant.

Appeal from the United States District Court for the Western District of Washington

Before: WRIGHT, PREGERSON and THOMPSON, Circuit Judges.

William L. DWYER, District Judge.

Rodney McWatters appeals the district court's denial of his motion for downward departure during sentencing. We affirm.

In response to McWatters's motion for downward departure based on his status as a deportable alien, the district court stated: "The fact that he will face deportation I do not believe constitutes a valid ground for departure on the record of this case, and no departure will be ordered on that basis." Any ambiguity in the court's intent is resolved by our review of the transcript of the sentencing hearing, which demonstrates that the court was exercising its discretion in declining to depart. A district court's discretionary refusal to depart from the Sentencing Guidelines is not reviewable on appeal. United States v. Sablan, 92 F.3d 865, 870 (9th Cir.1996).

There was no ambiguity in the district court's exercise of discretion when it declined to depart downwards based on conditions of confinement to be faced by McWatters. This discretionary refusal to depart from the Guidelines is also not reviewable on appeal. Id.

By affirming McWatters's sentence we do not mean to preclude the district court from reconsidering the sentence it imposed, either sua sponte or upon any appropriate motion McWatters may file.

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