
    UNITED STATES of America, Plaintiff—Appellee, v. Alfonso AGUILAR, Defendant—Appellant.
    No. 02-50193.
    D.C. No. CR-01-01637-JMF.
    United States Court of Appeals, Ninth Circuit.
    Submitted March 10, 2003.
    
    Decided March 19, 2003.
    Before CANBY, O’SCANNLAIN and T. G. NELSON, Circuit Judges.
    
      
       This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Alfonso Aguilar appeals from the judgment of conviction and his 151-month sentence following his guilty plea to importing methamphetamine in violation of 21 U.S.C. §§ 952, 960. To the extent he contends that 21 U.S.C. § 841 is unconstitutional, the record indicates that Aguilar was not convicted under that statute. The statutes under which Aguilar was convicted, 21 U. S.C. §§ 952, 960, are not facially unconstitutional. United States v. Mendoza-Paz, 286 F.3d 1104, 1109-10 (9th Cir.2002); United States v. Buckland, 289 F.3d 558 (9th Cir.) (en banc), cert. denied, 535 U.S. 1105, 122 S.Ct. 2314, 152 L.Ed.2d 1067 (2002). Aguilar’s contention that United States v. Harris, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), overrules United States v. Buckland and United States v. Mendoza-Paz is foreclosed by United States v. Hernandez, 314 F.3d 430, as amended, 322 F.3d 592, 2003 WL 730663 (9th Cir. Mar.5, 2003).

Aguilar also contends that the district court erred by failing to depart downward in sentence for Aguilar’s diminished capacity from chronic depression. This court lacks jurisdiction over this issue because the record shows that the district court recognized its discretion to depart but declined to do so. United States v. Patterson, 292 F.3d 615, 633 (9th Cir.2002).

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.
     