106 F. App'x 604

OTTO R. SKOPIL, Senior Circuit Judge,
dissenting.
SKOPIL, Senior Circuit Judge.
I dissent because I believe we lack jurisdiction to review Monroe’s contention that the district court erred by not departing downward. We have long held that 18 U.S.C. § 3742(a) “precludes appellate review of a district court’s discretionary refusal to depart downward from the guidelines.” See United States v. Morales, 898 F.2d 99, 101 (9th Cir.1990); see also United States v. Linn, 362 F.3d 1261, 1262 (9th Cir.2004) (“It is settled law that 18 U.S.C. § 3742 strips us of jurisdiction to review a discretionary denial of a downward departure.”).
There are clear indications in this case that the district court’s decision not to depart downward was wholly discretionary. The district judge, after reviewing the parties’ submissions, stated that “I am not going to exercise my discretion and make a downward departure based on 5H1.4.” The court thereafter summarized the underlying facts regarding Monroe’s claim of extraordinary physical impairment and again stated “I’m not going to exercise my discretion to make a downward departure.”
Notwithstanding these statements, the majority reviews the district court’s decision not to depart by examining the court’s findings for clear error. The majority relies on United States v. Martine-Guerrero, 987 F.2d 618 (9th Cir.1993). In Martinez-Guerrero, however, we noted that “[t]he record plainly shows that the district court refused to depart downward because, according to its interpretation of section 5H1.1 and case law on which it relied, it had no discretion to depart downward.” Martinez-Guerrero, 987 F.2d at 620. Thus, we reviewed the district court’s decision because “[w]e have jurisdiction to review a district court’s refusal to depart downward based on its interpretation of the law as barring such a departure.” Id. (internal quotation omitted).
Our case is not one where the court believed that a fact or circumstance precluded it from exercising its discretion to depart. See United States v. Roe, 976 F.2d 1216, 1218 n. 1 (9th Cir.1992) (reviewing a factual finding that the district court believed prevented it from exercising its discretion). Rather, the court here indicated it had the discretion to depart downward; it simply concluded that Monroe’s circumstances did not warrant departure. A district court’s explanation for why a departure is unwarranted should not be interpreted as a statement that the court lacked legal authority to depart. See United States v. Rearden, 349 F.3d 608, 617 (9th Cir.2003). Rather, such statements “simply ma[k]e the case for why the departure was unwarranted ... and indicates a decision founded in discretion, not lack of authority.” Id.
I would dismiss the appeal for lack of jurisdiction.

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