United States v. Bob H. Grahan

32 F.3d 571

• Court: Court of Appeals for the Eighth Circuit
• Decided: August 1, 1994
• Docket: 94-1344
• Status: Unpublished

Opinion

32 F.3d 571

NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that no party may cite an opinion not intended for publication unless the cases are related by identity between the parties or the causes of action.
UNITED STATES of America, Appellee,
v.
Bob H. GRAHAN, Appellant.

No. 94-1344.

United States Court of Appeals,
Eighth Circuit.

Submitted: July 21, 1994.
Filed: August 1, 1994.

Before McMILLIAN, FAGG, and BOWMAN, Circuit Judges.

PER CURIAM.

Bob H. Graham pleaded guilty to possessing methamphetamine with intent to distribute and to being a felon in possession of a firearm. Arguing that post-traumatic stress brought on by his Vietnam military service caused him to abuse drugs, Graham moved for a downward departure from the Guidelines sentence under U.S.S.G. Sec. 5K2.0 (aggravating or mitigating circumstances of a kind or degree not adequately considered by Commission) and U.S.S.G. Sec. 5K2.13 (diminished capacity). At Graham's sentencing hearing, the district court concluded Graham's service-related condition was not sufficiently unusual to warrant departure under Sec. 5K2.0 and Graham's mental capacity was not sufficiently diminished to warrant departure under Sec. 5K2.13. The district court sentenced Graham to the minimum sentence in the applicable Guidelines range. Graham appeals his sentence.

Because our reading of the record persuades us the district court knew it had authority to depart downward under U.S.S.G. Secs. 5K2.0 and 5K2.13, the district court's exercise of its discretion not to depart is unreviewable. See United States v. Brown, 18 F.3d 1424, 1425 (8th Cir. 1994) (per curiam). Accordingly, we affirm Graham's sentence.