United States v. Troy Woodard ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-2908
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Troy Woodard, *
* [UNPUBLISHED]
Appellant. *
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Submitted: May 15, 2003
Filed: May 28, 2003
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Before BOWMAN, MELLOY, and SMITH, Circuit Judges.
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PER CURIAM.
Troy Woodard pleaded guilty to conspiring to possess with intent to distribute
500 grams or more of methamphetamine, in violation of 21 U.S.C. § 846. The district
court1 sentenced him to 120 months imprisonment and 5 years supervised release. On
appeal, Woodard argues that under U.S.S.G. § 4A1.2(c)(1) and (2),the district court
erred by assigning criminal history points to state sentences for petty theft and
marijuana possession, that the court should have departed downward, and that the
1
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
court erred by denying his motion to continue sentencing so he could pursue his
motions in state court to set aside the disputed sentences.
The district court did not clearly err by including Woodard’s prior marijuana-
possession and theft sentences in his criminal history score. See United States v.
Jenkins, 989 F.2d 979, 979-80 (8th Cir. 1993) (applying clearly erroneous standard
to decision regarding similarity of prior offense to list of excluded offenses under
U.S.S.G. § 4A1.2(c)(1) and (c)(2); Nebraska conviction for possession of less than
ounce of marijuana was not excluded from criminal history score); United States v.
Ziglin, 964 F.2d 756, 758 (8th Cir. 1992) (petty-theft offense not excluded from
criminal history score). Further, the district court’s discretionary decision not to
depart downward is unreviewable, see United States v. Edwards, 225 F.3d 991, 992-
93 (8th Cir. 2000) (refusal to depart from Guidelines is unreviewable as long as
district court was aware of its authority to depart), cert. denied, 531 U.S. 1100 (2001),
and we cannot conclude that the district court committed a prejudicial abuse of
discretion in denying Woodard’s motion to continue sentencing, see United States v.
Ulrich, 953 F.3d 1082, 1085 (8th Cir. 1991) (district court’s refusal to continue
sentencing should be reversed only if court abused its discretion and defendant was
prejudiced).
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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