United States v. Otho Leonard Rater

1 The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2172
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
LeVarges Lenard Brown, *
* [UNPUBLISHED]
Appellant. *
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Submitted: April 6, 2004
Filed: April 15, 2004
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Before MELLOY, HANSEN, and COLLOTON, Circuit Judges.
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PER CURIAM.
After LeVarges Brown pleaded guilty to possessing with intent to distribute
approximately 108 grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(A), the district court 1 sentenced him to 262 months imprisonment and 5 years
supervised release. Brown appeals, and we affirm.

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-2-
Brown argues that the district court erred by concluding that it lacked authority
to grant Brown’s motion for downward departure under U.S.S.G. § 4A1.3. We have
carefully reviewed the sentencing transcript, and we find no basis to conclude that the
court believed it lacked authority to depart. Rather, the district court made a clearly
discretionary decision not to depart under section 4A1.3 after reviewing Brown’s
criminal history and finding it to be “extensive” and “significant.” The district
court’s decision is, therefore, unreviewable. See United States v. Walterman, 343
F.3d 938, 942 (8th Cir. 2003) (court has no authority to review district court’s
discretionary decision not to downwardly depart, except where district court believed
it lacked power to exercise its discretion).
The judgment is affirmed.
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