
    UNITED STATES of America, Plaintiff-Appellee, v. Rutilio BANUELOS, Defendant-Appellant.
    No. 01-50445. No. CR-00-01060-MLR.
    United States Court of Appeals, Ninth Circuit.
    Submitted Feb. 11, 2002.
    
    Decided Feb. 25, 2002.
    Before B. FLETCHER, T.G. NELSON, 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

Rutilio Banuelos appeals his 30-month sentence imposed following conviction by guilty plea to conspiring to possess with intent to distribute marijuana in violation of 21 U.S.C. § 846.

Banuelos contends that the district court erred in failing to grant him downward departures under U.S.S.G. §§ 5H1.3 and 5K2.13 on the grounds of mental and emotional condition and diminished capacity.

The record shows the district court concluded that departure was not warranted, and there is no indication that the district court believed that it lacked the discretion to depart under U.S.S.G. §§ 5H1.3 and 5K2.13. Accordingly, the district court’s refusal to depart downward under §§ 5H1.3 and 5K2.13 is discretionary and not reviewable. See United States v. Davis, 264 F.3d 813, 816-17 (9th Cir.2001) (stating that a district court’s silence regarding authority to depart is not enough to indicate that it believed it lacked power 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 Ninth Circuit Rule 36-3.
     