
    UNITED STATES of America, Plaintiff—Appellee, v. Richard Frank PETH, Defendant—Appellant.
    No. 03-30209.
    D.C. No. CR-02-00346-BJR.
    United States Court of Appeals, Ninth Circuit.
    Submitted Nov. 10, 2003.
    
    Decided Nov. 14, 2003.
    Kelly L. Harris, USSE-Office of the U.S. Attorney, Seattle, WA, for PlaintiffAppellee.
    Michael Filipovic, FPDWA-Federal Publicd Efender’s Office, Seattle, WA, for Defendant-Appellant.
    Before KOZINSKI, SILVERMAN and TALLMAN, Circuit Judges.
    
      
       This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Richard Frank Peth, Jr., appeals his 78-month sentence following his guilty plea conviction for bank robbery in violation of 18 U.S.C. § 2113(a). Peth contends the district court applied an incorrect legal standard when it denied his request for a downward departure under U.S.S.G. § 5K12.13, based on his reduced mental capacity. The record does not support this contention. The sentencing transcript indicates that the district court expressly referred to the applicable sentencing guideline after considering extensive testimony and argument regarding Peth’s mental and emotional state related to his gambling addiction, and concluded that there was not sufficient evidence of any cognitive difficulties to support a mental capacity departure. In such cases, we lack jurisdiction to review the district court’s discretionary refusal to grant a defendant’s request for departure. U.S. v. Smith, 330 F.3d 1209, 1213-14 (9th Cir.2003).

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