What is the test for reversal of a sentence where the sentencing judge stated at the sentencing hearing that he was not inclined to depart?

MultiRegion, United States of America

The following excerpt is from U.S. v. Eaton, 31 F.3d 789 (9th Cir. 1994):

Finally, we note that reversal is not necessary where the district court errs in construing its authority but indicates that it would not have departed downward even if it were not constrained. United States v. Belden, 957 F.2d 671, 676 (9th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 234, 121 L.Ed.2d 169 (1992) (declining to review a decision where the district court stated at the sentencing hearing that he was "not inclined to depart"); United States v. Williams, 898 F.2d 1400, 1403 (9th Cir.1990) (where a judge stated "I do not find that I have the authority [to depart] in this case, nor do I find facts which would lead me to believe I should depart," the sentence was not reviewable on appeal). Given that the district court responded to Eaton's objections with remarks which clearly indicate that it did not wish to depart further, we affirm the sentence.

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