appeals from the sentence imposed by the district court. He contends that the district court erred in refusing to depart downward from the Sentencing Guidelines based on the ineffective assistance of his counsel in advising him regarding the Government’s offered plea agreement. He asserts that such ineffective assistance of counsel should be a ground for departure. We decline to reach the merits of Rivera-Sanchez’s argument because we lack jurisdiction under 18 U.S.C. § 3742(a) to review the district court’s refusal to depart downward from the Sentencing Guidelines. We conclude that the district court’s decision not to depart downward was discretionary and not based on its belief that it did not have the authority to do so. See United States v. Eaton, 31 F.3d 789, 792-93 (9th Cir.1994) (<HOLDING>). In fact, the court held a hearing to
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 court was not required to state affirmatively on the record that it knew it possessed the authority to depart downward 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 recognizing that a defendant may appeal a district courts refusal to depart downward if the sentence was imposed in violation of law because the district court misconstrued its authority to depart holding there was no jurisdiction to review district courts discretionary refusal to depart downward on the grounds that defendants conduct constituted a single act of aberrant behavior