EEOC v. Liberal R-II School

1 The Honorable Carol E. Jackson, Chief Judge, United States District Court for
the Eastern District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-1053
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Mario Johnson, * [UNPUBLISHED]
*
Appellant. *
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Submitted: December 12, 2002
Filed: December 17, 2002
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Before WOLLMAN, MORRIS SHEPPARD ARNOLD, and MELLOY, Circuit
Judges.
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PER CURIAM.
Mario Johnson pleaded guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). The government moved for downward departure,
but the district court 1 departed upward instead, finding that Johnson’s criminal history
had been underrepresented. The court sentenced Johnson to 63 months of
imprisonment and 3 years of supervised release. On appeal, Johnson argues that the

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district court abused its discretion in departing upward because his criminal history
was adequately taken into account, and the government had sought a downward
departure based on his substantial assistance.
We conclude that the district court did not abuse its discretion. See United
States v. Levi, 229 F.3d 677, 679 (8th Cir. 2000) (standard of review). The court
properly considered the number and substance of Johnson’s past convictions--
including multiple assault and resisting-arrest convictions, as well as controlled-
substance convictions and parole revocations--and found that his record was not
improving. In addition, Johnson had 21 criminal history points, which was 8 more
than the 13 required for a Category VI criminal history. See U.S.S.G. § 4A1.3, p.s.;
United States v. Herr, 202 F.3d 1014, 1017 (8th Cir. 2000); United States v. Lank,
108 F.3d 860, 863 (8th Cir. 1997); United States v. Cook, 972 F.2d 218, 222 (8th Cir.
1992), cert. denied, 506 U.S. 1058 (1993). Finally, we note that the district court’s
discretionary decision not to grant the substantial-assistance motion is unreviewable,
and therefore it is not a basis for challenging the upward-departure decision. See
United States v. Cloughley, 901 F.2d 91, 93-94 (8th Cir. 1990).
Accordingly, the judgment is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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