
    UNITED STATES of America, Plaintiff—Appellee, v. Jesus Armando MACIAS-RUA, Defendant—Appellant.
    No. 01-50124.
    D.C. No. CR-99-01350-ABC.
    United States Court of Appeals, Ninth Circuit.
    Submitted March 11, 2002.
    
    Decided March 21, 2002.
    Before CANBY, BEEZER, and PAEZ, Circuit Judges.
    
      
       This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Jesus Armando Macias-Rua appeals his 77-month sentence imposed after his guilty plea to being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1826. Macias-Rua acknowledges that his argument, that Apprendi v. New Jersey, 580 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) prevented the application of the maximum penalty under 8 U.S.C. § 1326(b)(2) because he did not admit to having previously committed an aggravated felony, is foreclosed by United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir.2000), cert. denied, 532 U.S. 966, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001). Macias-Rua raises the contention solely to preserve it in the event the Supreme Court decides differently in the future. Thus, we do not consider it further.

Macias-Rua contends that the district court erroneously concluded under United States v. Lipman, 133 F.3d 726, 730-31 (9th Cir.1998) that it lacked the discretion to depart downward on the grounds that he lacked the ability to culturally assimilate into Mexico. The record in this case, however, shows that Macias-Rua’s cultural assimilation argument was presented to and considered by the district court; the district judge simply declined to exercise discretion to depart downward based on the facts of the case. United States v. Dubose, 146 F.3d 1141, 1143 n. 1 (9th Cir.1998) (citation omitted) (stating that the district court’s decision not to depart downward was discretionary where the court “considered the proffered reasons for departure but found them lacking.”). Accordingly, we are without jurisdiction to review the discretionary denial of MaciasRua’s request for a downward departure. United States v. Webster, 108 F.3d 1156, 1158 (9th Cir.1997).

AFFIRMED. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
     