
    UNITED STATES of America, Plaintiff-Appellee, v. Patrick WENTZ, Defendant-Appellant.
    No. 00-30246.
    D.C. No. CR-98-00495-AJB.
    United States Court of Appeals, Ninth Circuit.
    Submitted Sept. 9, 2002.
    
    Decided Sept. 16, 2002.
    Before HUG, O’SCANNLAIN and TASHIMA, Circuit Judges.
    
      
       The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2). Accordingly, Wentz's request for oral argument is denied.
    
   MEMORANDUM

Patrick Wentz appeals his 37-month sentence following a guilty plea conviction to one count of felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we dismiss.

Wentz contends that the district court erroneously concluded it lacked the legal authority to depart downward based on lesser harm pursuant to United States Sentencing Guidelines § 5K2.11. We lack jurisdiction to review the district court’s denial of Wentz’s request for a downward departure because the sentencing judge acknowledged she had the discretion to depart, but declined to exercise her authority on the facts presented. See United States v. Daas, 198 F.3d 1167, 1182 (9th Cir.1999) (holding district court’s denial of departure unreviewable on appeal where, despite court’s statements suggesting it lacked the authority to depart downward, it “ultimately recognized and exercised its discretion not to depart”).

DISMISSED. 
      
       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 9th Cir. R. 36-3.
     