Robert Mems v. City of St. Paul

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-2621
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Northern District of Iowa.
*
Richard Scott McAllen, * [UNPUBLISHED]
*
Appellant. *
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Submitted: February 12, 2003
Filed: April 7, 2003
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Before BOWMAN, MORRIS SHEPPARD ARNOLD, and BYE, Circuit Judges.
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PER CURIAM.
In 2000, Richard Scott McAllen pleaded guilty to federal weapons charges and
was sentenced to twenty-seven months in prison. His plea agreement acknowledged
that the government would seek an indictment on related drug charges at a later time.
Prior to his release, the government filed the indictment in this case and McAllen
subsequently entered an unconditional plea of guilty to one count of manufacturing
and attempting to manufacture five grams or more of methamphetamine within 100
feet of a protected area. See 21 U.S.C. §§ 841(a)(1), 841(b)(1), 846, 860 (2000). He
now appeals his sentence on the methamphetamine charge.

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1 The Honorable Michael J. Melloy, United States District Judge for the
Northern District of Iowa. Judge Melloy has since been appointed United States
Circuit Judge for the Eighth Circuit and currently serves in that capacity.
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McAllen urges that his Fifth Amendment Due Process rights were violated
when the government waited some nineteen months following his arrest on the related
weapons charges (to which he pleaded guilty) to file the indictment for the instant
drug charges. He does not seek reversal of his conviction, nor could he because of
his unconditional guilty plea. See United States v. Jennings, 12 F.3d 836, 839 (1994).
Instead, he morphs his due-process argument into a sentencing issue. The delay in
indicting him on the drug charges, he argues, prejudiced him because after he was
sentenced on the federal weapons charge, his state probation was revoked (apparently
for unrelated conduct), which added one point to his criminal history and moved him
from category three to category four for purposes of sentencing on the
methamphetamine charge. This single criminal-history point effectively increased his
sentencing range from 78-97 months to 92-115 months. He was sentenced to ninety-
two months in prison and given credit for the twenty-seven months he already had
served. McAllen contends that the increase in his sentence was sufficiently
prejudicial to warrant a downward departure under U.S.S.G. § 5K2.0. McAllen,
however, never made a motion asking the District Court 1 to depart downward and he
therefore waived his claim for a downward departure. See United States v. Murphy,
248 F.3d 777, 779 (8th Cir. 2001). Even if McAllen had made a motion for a
downward departure, a district court's discretionary decision not to grant a § 5K2.0
departure from the applicable guidelines sentencing range is unreviewable absent an
allegation that the district court had an unconstitutional motive for refusing to depart
or erroneously determined that it lacked the authority to depart. United States v.
Lalley, 257 F.3d 751, 757 (8th Cir. 2001) (citing United States v. Navarro, 218 F.3d
895, 897 (8th Cir. 2000)). In any event, the prejudice alleged in this case is solely the
result of the fact that McAllen violated the terms of his state probation, causing it to
be revoked. In these circumstances, we can conceive of no reason for a district court

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to grant a downward departure under § 5K2.0, and we can see no due-process
dimension to McAllen's claim for a downward departure.
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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