United States v. Jackie Brown ( 1995 )

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No. 95-2303
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Jackie Brown, * [UNPUBLISHED]
*
Appellant. *
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Submitted: December 20, 1995
Filed: December 27, 1995
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Before WOLLMAN, MAGILL, and HANSEN, Circuit Judges.
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PER CURIAM.
Jackie Brown pleaded guilty to conspiring to distribute
methamphetamine and to possess it with intent to distribute, in violation
of 21 U.S.C. §§ 841(a)(1) and 846. The district court1 sentenced her to
63 months imprisonment and five years supervised release. Brown appeals,
arguing that the district court erred by denying her U.S.S.G. § 5K2.0
departure motion. We affirm.
Brown distributed or was involved in the distribution of between 400
and 700 grams of D-methamphetamine over the two-year period charged in the
indictment. At sentencing, Brown moved for a downward departure, arguing
that she distributed the methamphetamine in small amounts over the two-year
period in question, and that the district court should follow United States
v. Lara, 47 F.3d 60 (2d Cir. 1995) (affirming § 5K2.0 departure
1
The Honorable Richard G. Kopf, United States District Judge
for the District of Nebraska.
under "quantity/time factor" where defendants sold small amounts of drugs
over a long time span). The district court denied Brown's motion, finding
no reason to depart in her case and distinguishing Lara.
A court may depart from the applicable Guidelines ranges "if the
court finds ``that there exists an aggravating or mitigating circumstance
of a kind, or to a degree, not adequately taken into consideration by the
Sentencing Commission in formulating the guidelines that should result in
a sentence different from that described.'" U.S.S.G. § 5K2.0, p.s. (citing
18 U.S.C. § 3553(b)). If a district court's refusal to depart was an
exercise of discretion, we cannot review the ruling; if, however, the
district court concluded it had no authority to depart, we may review the
ruling. United States v. Bieri, 21 F.3d 811, 817 (8th Cir.), cert. denied,
115 S. Ct. 208 (1994). Upon our review of the record, we conclude that the
district court's refusal to depart was an unreviewable exercise of
discretion. See United States v. Edgar, 971 F.2d 89, 92-93 (8th Cir.
1992).
The judgment is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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