United States v. Benny Council ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 96-3128
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota
Benny Council, *
* [UNPUBLISHED]
Appellant. *
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Submitted: March 5, 1997
Filed: April 15, 1997
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Before McMILLIAN, FAGG and LOKEN, Circuit Judges.
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PER CURIAM.
Benny Council pleaded guilty to making false statements during the
purchase of a firearm, in violation of 18 U.S.C. § 922(a)(6). The
presentence report (PSR) recommended a Guidelines range of 33-41 months,
including a four-level enhancement pursuant to U.S. Sentencing Guidelines
Manual § 2K2.1(b)(5) (1995). The district court1 adopted the PSR, but
departed downward based on the
1
The Honorable John R. Tunheim, United States District Judge
for the District of Minnesota.
government's motion under U.S. Sentencing Guidelines Manual § 5K1.1 (1995),
sentencing Council to 15 months imprisonment.
On appeal, Council challenges the section 2K2.1(b)(5) enhancement and
the government's support of the enhancement at the sentencing hearing,
claiming such support constituted a breach of the plea agreement. Without
application of the four-level section 2K2.1(b)(5) enhancement, Council's
total offense level of 14 and his category III criminal history score would
have yielded a Guidelines sentencing range of 21 to 27 months. Because
Council's 15-month sentence represents a downward departure from that
range, his sentence is unreviewable. See United States v. Baker, 64 F.3d
439, 441 (8th Cir. 1995); United States v. Wyatt, 26 F.3d 863, 864 (8th
Cir. 1994) (per curiam).
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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