MEMORANDUM2

Willie J. Hughes appeals the 12 month sentence imposed following his conviction for five counts of Aiding and Abetting in the Preparation of False and Fraudulent Income Tax Returns in violation of 26 U.S.C. § 7206(2). We dismiss.

Hughes contends that the district court erred by determining that it lacked the discretion to grant him a downward departure for diminished capacity pursuant to U.S.S.G. § 5K2.13. The record, however, is devoid of support for this contention.

We conclude that the district court determined that it had the discretion to grant a downward departure but chose not do so. See United States v. Jackson, 986 F.2d 312, 314 (9th Cir. 1993) (providing that when it is not otherwise in dispute, a district court’s silence regarding its authority to depart is not sufficient to indicate that the court believed it lacked the power to depart). Accordingly, we lack jurisdiction to review the district court’s discretionary decision not to depart downward. United States v. Tucker, 133 F.3d 1208, 1219 (9th Cir. 1998).3

DISMISSED.