MEMORANDUM2

Cayetano Amigon-Ruiz appeals his 70-month sentence imposed following conviction by guilty to plea to a single count of being found in the United States following deportation, in violation of 8 U.S.C. § 1326. We dismiss this appeal.

Amigon-Ruiz contends that the district court erroneously determined that it lacked discretion to depart downward based on the alleged minor nature of his prior aggravated felonies. Notwithstanding our decision in United States v. Sanchez-Rodriguez, 161 F.3d 556, 560 (9th Cir. 1998) (holding that the district court has discretion to depart downward based on minor nature of prior aggravated felony), we do not reach this contention because the district court indicated that it would not depart on this basis even if it had the authority to do so. United States v. Burnett, 16 F.3d 358, 361 (9th Cir. 1994) (declining to review a district court’s determination that it has no authority to depart when it indicates it would not depart even if it had the authority to do so).

DISMISSED.