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United States v. Pesina

filed*fn*: August 27, 1992.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
RAUL VILLAREAL PESINA, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the District of Idaho. D.C. No. CR-91-00011-S-HLR. Harold L. Ryan, District Judge, Presiding

Before: Brunetti, Rymer, and Kleinfeld, Circuit Judges.

MEMORANDUM

Raul Villareal Pesina appeals his sentence under the United States Sentencing Guidelines ("Guidelines" or "U.S.S.G."), following entry of a guilty plea, for conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. Pesina contends that the district court erred by failing to depart downward from the applicable Guidelines range. He argues that (1) his role as co-breadwinner in a family with young children and/or (2) the alleged violation of his due process rights because he was prosecuted in federal rather than state court justify a downward departure. We dismiss the appeal.

A district court's discretionary refusal to depart downward from the Guidelines is not reviewable on appeal. United States v. Robinson, 958 F.2d 268, 272 (9th Cir. 1992). Moreover, "'family ties and responsibilities . . . are not ordinarily relevant in determining whether a sentence should be outside the Guidelines." United States v. Berlier, 948 F.2d 1093, 1096 (9th Cir. 1991) (quoting U.S.S.G. § 5H1.6). In addition, "a prosecutor's charging decision cannot be judicially reviewed absent a prima facie showing that it rested on an impermissible basis, such as gender or race." United States v. Sitton, Nos. 91-50154, 91-50156, 91-50166, slip op. 7861, 7868 (9th Cir. July 2, 1992); accord United States v. Nance, 962 F.2d 860, 864-65 (9th Cir. 1992)(per curiam) (same). Pesina does not argue that discrimination based on suspect characteristics played a role in his referral to federal court.*fn1

Therefore, we lack jurisdiction to consider Pesina's request for a downward departure. See Robinson, 958 F.2d at 272.

DISMISSED.

Disposition

DISMISSE ...


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