
    UNITED STATES of America, Plaintiff—Appellee, v. Sergio MENDEZ-MAGANA, Defendant—Appellant.
    No. 03-30525.
    United States Court of Appeals, Ninth Circuit.
    Submitted June 14, 2004.
    
    Decided June 22, 2004.
    
      Jane M. Kirk, Esq., Yakima, WA, for Plaintiff-Appellee.
    Nicholas W. Marchi, Esq., Carney & Marchi, P.S., Seattle, WA, for Defendants Appellant.
    Before: LEAVY, THOMAS and FISHER, Circuit Judges.
    
      
       This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Sergio Mendezr-Magana appeals his 46-month sentence following his guilty plea to illegal reentry in violation of 8 U.S.C. § 1326. He contends that the district court erred under U.S.S.G. § 5H1.6 by denying Mendez-Magana a downward departure in sentence for his extraordinary family ties and the duress he felt based on concern for his daughter during a custody battle with her mother.

It is well-settled that a district court’s refusal to grant a downward departure is completely discretionary and free from appellate review. United, States v. Rodriguez, 360 F.3d 949, 959-60 (9th Cir.2004). We can only review the decision if the record indicates that the district court failed to recognize its discretionary power to depart from the guidelines. Id.

Mendez-Magana argues that the district court failed to recognize that it had authority to depart downward on the permissible grounds he offered. This argument is not persuasive. Throughout the sentencing hearing, the district court clearly demonstrated its understanding that it possessed authority to allow a downward departure, though it declined to do so in this case. The court stated that the factors of Mendez-Magana’s family ties, community ties, employment history, cultural assimilation and duress did not “justify the exercise of the court’s discretion. I think this a heartland case.” Because the district court considered and refused to exercise its discretion to depart from the sentencing guidelines, we cannot now review that discretionary decision. Rodriguez, 360 F.3d at 960.

AFFIRMED. 
      
       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.
     