United States v. Delphine Marie Boyd

52 F.3d 331, 1995 U.S. App. LEXIS 21356, 1995 WL 236756

• Court: Court of Appeals for the Eighth Circuit
• Decided: April 25, 1995
• Docket: 94-3309
• Status: Published

Opinion

52 F.3d 331
NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that no party may cite an opinion not intended for publication unless the cases are related by identity between the parties or the causes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.
Delphine Marie BOYD, Appellant.

No. 94-3309

United States Court of Appeals,
Eighth Circuit.

Submitted: Apr. 5, 1995
Filed: Apr. 25, 1995

Before McMILLIAN, LOKEN, and HANSEN, Circuit Judges.

PER CURIAM.

After a confrontation with Noella Tyndall during a house party, Delphine Marie Boyd stabbed Tyndall and her companion, Luther Thomas, outside the house. Boyd pleaded guilty to assault with a knife in violation of 18 U.S.C Secs. 113(c) and 1153, and the district court1 sentenced her to 37 months in prison and three years of supervised release. Boyd appeals her sentence, arguing that the district court erred in refusing to depart downward from the applicable Guidelines range on the basis of victim misconduct. See U.S.S.G. Sec. 5K2.10. However, it is clear from the record that the district court was aware of its authority to depart under Sec. 5K2.10 but concluded that a departure was not warranted on the facts of this case. That conclusion is not reviewable on appeal. See, e.g., United States v. Brown, 18 F.3d 1424, 1425 (8th Cir. 1994) (per curiam).

Accordingly, we affirm.

1 The HONORABLE THOMAS M. SHANAHAN, United States District Judge for the District of Nebraska