United States v. Lon Michael Caslavka

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No. 96-1595
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa
Lon Michael Caslavka, *
* [UNPUBLISHED]
Appellant. *
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Submitted: December 3, 1996
Filed: December 17, 1996
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Before McMILLIAN, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit
Judges.
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PER CURIAM.
Lon Michael Caslavka pleaded guilty to income tax evasion in
violation of 26 U.S.C. § 2601, and making a false statement to a
federally-insured financial institution in violation of 18 U.S.C.
§ 1014. The United States District Court1 for the Northern
District of Iowa imposed a sentence of two concurrent 21-month
terms of imprisonment, 3 years supervised release, and $15,000
restitution. Caslavka appeals. Counsel has filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967). We granted Caslavka
leave to file a pro se supplemental brief, which he has not done.
For the reasons discussed below, we affirm.
At the time Caslavka committed the federal offenses, he was
on probation for a 1988 state conviction. In 1993, a jury
1
The Honorable Michael J. Melloy, Chief Judge, United States
District Court for the Northern District of Iowa.
convicted Caslavka in state court of first-degree theft in
connection with money Caslavka had misappropriated. As a result of
that theft conviction, the Iowa state court revoked Caslavka's
probation, and he served 14 months imprisonment before the Iowa
Supreme Court reversed his theft conviction. See State v.
Caslavka, 531 N.W.2d 102 (Iowa 1995).
At sentencing following his guilty plea to the federal charges
(and while he was on parole for the 1988 state conviction),
Caslavka sought "some type of credit" for the 14 months he served
as a result of the overturned state theft conviction. He argued
that the district court should depart downward by 14 months, or
should consider applying U.S. Sentencing Guidelines Manual
§ 5G1.3(b) (1995) (concurrent sentences shall be imposed where
undischarged term of imprisonment resulted from offense fully taken
into account in instant offense level) and application note 2
(providing for adjusted concurrent sentence in subsection (b)
cases).
The district court rejected the request for a downward
departure. The district court also found Guidelines § 5G1.3(b) was
inapplicable. The district court stated that different (although
perhaps intertwined) conduct formed the basis for the theft charge
and the federal charges; and even if the probation revocation
rested on conduct underlying the federal charges, application note
6 (providing for consecutive sentence where probation has been
revoked)--rather than application note 2--would apply.
We may review a district court's refusal to depart downward
only if the refusal "is premised on the belief that the court
lacked the authority to [depart]." United States v. Jenkins, 78
F.3d 1283, 1290 (8th Cir. 1996). Otherwise, a district court's
refusal to exercise its discretion and depart is unreviewable. Id.
We conclude that the record as a whole indicates that the district
court's decision not to depart was premised ultimately on its
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belief that the facts of this case did not warrant a departure.
Thus, the court's decision is unreviewable. See United States v.
Bieri, 21 F.3d 811, 818 (8th Cir.), cert. denied, 115 S. Ct. 208
(1994).
We review de novo the district court's application of
Guidelines § 5G1.3. United States v. Brewer, 23 F.3d 1317, 1320
(8th Cir. 1994). We agree with the district court that, because
Caslavka's offense level for tax evasion and false statements did
not take into account the separate but related offense of theft
which led to his serving 14 months in state prison, Guidelines
§ 5G1.3(b) did not apply. Furthermore, because the overturned
theft conviction was not included in the calculation of Caslavka's
criminal history score, and the time served in state prison
resulted from probation revocation, we conclude the district court
properly declined to make the federal sentence concurrent with the
state sentence. See U.S. Sentencing Guidelines Manual § 5G1.3(c)
& comment. (n.6) (1995).
Having carefully reviewed the record, we find no other
nonfrivolous issues for appeal. See Penson v. Ohio, 488 U.S. 75,
80 (1988). Accordingly, we affirm.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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