United States v. Thomas A. Birkel ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-2318
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Thomas A. Birkel, *
* [UNPUBLISHED]
Appellant. *
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Submitted: November 2, 1999
Filed: November 4, 1999
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Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
Thomas A. Birkel pleaded guilty to one count of bank robbery, in violation of
18 U.S.C. § 2113(a). He moved for a downward departure under 18 U.S.C. § 3553(b)
and U.S. Sentencing Guidelines Manual § 5K2.0, but the district court1 denied his
motion and sentenced him to 57 months imprisonment and 3 years supervised release.
On appeal, Birkel argues that the court erred in declining to depart downward.
1
The HONORABLE RICHARD G. KOPF, United States District Judge for the
District of Nebraska.
The record demonstrates, and Birkel concedes, that the district court was aware
of its authority to depart from the Guidelines, and declined to do so. Thus, the issue
is unreviewable. See United States v. Turechek, 138 F.3d 1226, 1228 (8th Cir. 1998)
(district court’s discretionary decision not to depart downward from Guidelines is
unreviewable so long as court was aware of its authority to do so).
Accordingly, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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