USA v. Thomas J. Ballanco

1 The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2806
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Henry James Winsley, * District of Nebraska.
* [UNPUBLISHED]
Appellant. *
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Submitted: February 6, 2004
Filed: February 26, 2004
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Before MELLOY, HANSEN, and COLLOTON, Circuit Judges.
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PER CURIAM.
Henry Winsley pleaded guilty to making a false statement in connection with
his purchase of a firearm, in violation of 18 U.S.C. § 922(a)(6). The district court1
declined to depart downward from the presumptively correct punishment range
determined by the Sentencing Guidelines, and sentenced Winsley to 30 months in
prison and 2 years supervised release. For reversal, Winsley argues that the district
court incorrectly concluded it had no authority to depart downward.

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-2-
After carefully reviewing the record, including the various comments made by
the district court during the sentencing hearing, we conclude that the district court
was fully aware of its authority to depart downward and simply declined to do so.
See United States v. VanHouten, 307 F.3d 693, 697 (8th Cir. 2002) (district court’s
statement that it lacked power to depart “in a case like this” was acknowledgment that
departure was not justified by facts of case, not expression of mistaken belief that it
lacked authority to depart); United States v. Knight, 96 F.3d 307, 311 (8th Cir. 1996)
(reviewing district court’s comments as whole to determine whether court understood
it could depart). Thus, we find that the district court’s discretionary decision not to
depart downward is unreviewable. See United States v. Rhone, 311 F.3d 893, 894
(8th Cir. 2002), cert. denied, 123 S. Ct. 2120 (2003).
Accordingly, we dismiss the appeal for lack of jurisdiction.
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