to depart downward on the basis of ineffective assistance of counsel, it is clear from the record that its refusal to depart downward was not based on a belief that it lacked the authority to depart downward for that reason, but rather, was an exercise of its discretion. See United States v. Garcia-Garcia, 927 F.2d 489, 491 (9th Cir.1991) (“Failure to depart without comment on the authority to do so does not convert a discretionary departure into a sentence imposed in violation of law.”). The district court considered the arguments as to ineffective assistance of counsel and rejected them, finding instead that the defendant himself was responsible for his higher sentence by failing to accept the plea agreement. See United States v. Dubose, 146 F.3d 1141, 1143 n. 1 (9th Cir.1998) (<HOLDING>). The fact that the district court stated that
holding that this court does not review decisions of a district court not to depart downward unless the record reflects that the district court was not aware of or did not understand its discretion to make such a departure holding that the district courts refusal to grant a downward departure was discretionary and not because it believed it lacked the authority to depart where the court assessed the facts of the case and concluded that the departure requested does not seem  to have a basis holding that the district courts denial of a downward departure was an exercise of discretion and therefore not reviewable holding that a circuit court has no jurisdiction to review a district courts discretionary decision not to depart downward from the guidelines but would have jurisdiction if the district court based its decision on the belief that it did not have the authority to depart holding that the district courts decision not to depart downward was discretionary and not reviewable where the court considered the proffered reasons for departure but found them lacking