FILED
                             NOT FOR PUBLICATION                            DEC 14 2009

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



 UNITED STATES OF AMERICA,                       No. 08-50561

               Plaintiff - Appellee,             D.C. No. 3:08-cr-02813-LAB

   v.

 GABRIEL VALENZUELA-SAINZ,                       MEMORANDUM *

               Defendant - Appellant.



                     Appeal from the United States District Court
                       for the Southern District of California
                      Larry A. Burns, District Judge, Presiding

                           Submitted November 17, 2009 **

Before:        ALARCÓN, TROTT, and TASHIMA, Circuit Judges.

        Gabriel Valenzuela-Sainz appeals from the 60-month sentence imposed

following his guilty-plea conviction for importation of cocaine, in violation of

21 U.S.C. §§ 952 and 960. Our jurisdiction is governed by 28 U.S.C. § 1291, and

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

JC/Research
we dismiss.

        Valenzuela-Sainz contends the district court erred by failing to recommend

him to the Bureau of Prisons’ (“BOP”) 500-hour residential treatment program for

substance abuse. Authority to determine whether a prisoner enters a residential

treatment program resides in the executive branch of the government and is

delegated to the BOP. See 18 U.S.C. § 3621(b), (e); see also Downey v. Crabtree,

, 666 (9th Cir. 1996) (“[The BOP] has broad discretion over the entire

drug-treatment process within the federal corrections system, beginning with

determining which inmates ever enter substance-abuse programs.”). Because

eligibility and referral to the residential substance abuse treatment program is not

within the district court’s authority, we have no jurisdiction to consider

Valenzuela-Sainz’s claim on appeal.

        DISMISSED.




JC/Research                                2                                    08-50561