United States v. Gary Dewayne Shipman

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 99-3293
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Gary Dewayne Shipman, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: September 7, 2000
Filed: September 14, 2000
___________
Before BEAM, FAGG, and LOKEN, Circuit Judges.
___________
PER CURIAM.
Gary DeWayne Shipman appeals from the final judgment entered in the district
court1 after he pleaded guilty to a drug-conspiracy charge. The district court sentenced
him to 121 months imprisonment and five years supervised release. For reversal, he
argues the suspended imposition of sentence (SIS) he received from a Missouri
municipal court in 1996 for driving under the influence was not a “prior sentence”
countable toward his criminal-history score. He also argues that the court erred in not
1
The Honorable Dean Whipple, Chief Judge, United States District Court for the
Western District of Missouri.
granting him a downward departure under U.S.S.G. § 5H1.4 based on his having
Acquired Immunodeficiency Syndrome (AIDS), and that the court violated Federal
Rule of Criminal Procedure 32(c)(1) and 18 U.S.C. § 3553(c) by failing to set forth
reasons for its decision.
Having reviewed de novo the district court’s construction and interpretation of
Chapter Four of the Sentencing Guidelines, and reviewed for clear error its application
of Chapter Four to the facts, we conclude the court did not err in counting Shipman’s
SIS toward his criminal-history score. See United States v. Holland, 195 F.3d 415,
416-17 (8th Cir. 1999) (standard of review; considering Missouri SIS conviction as
prior sentence under U.S.S.G. § 4A1.2(a)(3) and assessing 1 criminal history point),
cert. denied, 120 S. Ct. 1695 (2000); U.S.S.G. § 4A1.1(c) (adding 1 point for each
prior sentence not otherwise counted), § 4A1.2(a)(3) (conviction for which imposition
or execution of sentence was initially suspended or stayed shall be counted as prior
sentence under § 4A1.1(c)), § 4A1.2(f) (“diversionary disposition” is counted if it
results from finding or admission of guilt).
Further, we find the district court exercised its discretion not to depart on the
basis of AIDS as an extraordinary physical impairment and we are thus without
jurisdiction to review this decision. See United States v. Saelee, 123 F.3d 1024, 1025
(8th Cir. 1997) (discretionary decision not to depart from the Guidelines is
unreviewable on appeal absent an unconstitutional motive).
Finally, we reject Shipman’s Rule 32 challenge as legally inaccurate, see United
States v. Cureton, 89 F.3d 469, 474 (7th Cir. 1996) (Rule 32(c)(1) does not require
district court to enumerate its reasons for refusing to depart downward from Guidelines
range), and his section 3553 challenge as factually inaccurate, see 18 U.S.C. § 3553(c)
(court shall state reasons for imposition of particular sentence).
Accordingly, we affirm.
-2-
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-3-