United States v. Michael Almquist

104 F. App'x 611

• Court: Court of Appeals for the Eighth Circuit
• Decided: August 13, 2004
• Docket: 03-3943
• Status: Unpublished

Opinion

PER CURIAM.

Michael James Almquist (Almquist) pled guilty to misuse by a representative payee of benefits under Title II of the Social Security Act, in violation of 42 U.S.C. § 408(a)(5). The district court 1 declined to depart downward from the Sentencing Guidelines, and sentenced Almquist to three years supervised probation with six months home confinement. For reversal, Almquist argues the district court incorrectly concluded it had no authority to depart downward.

After carefully reviewing the record, and in particular the remarks made by the district court during the sentencing hearing, we conclude the court was fully aware of its authority to depart downward in a case falling outside the heartland of sentencing cases, and simply declined to do so given the facts in this case. See United States v. VanHouten, 307 F.3d 693, 696-97 (8th Cir.2002); United States v. Bieri, 21 F.3d 811, 817-18 (8th Cir.1994). Thus, we conclude the district court made a discretionary decision not to depart downward, which is unreviewable. See United States v. Rhone, 311 F.3d 893, 894 (8th Cir.2002), cert. denied, 538 U.S. 1051, 123 S.Ct. 2120, 155 L.Ed.2d 1095 (2003).

Accordingly, we affirm. We deny as moot Almquist’s motion for stay of sentence.

1 . The Honorable Harold D. Vietor, United States District Judge for the Southern District of Iowa.