73 F. 3d 366 - United States v. Brown

Jackie Brown pleaded guilty to conspiring to distribute methamphetamine and to possess it with intent to distribute, in violation of 21 U.S.C. Secs. 841(a)(1) and 846. The district court1 sentenced her to 63 months imprisonment and five years supervised release. Brown appeals, arguing that the district court erred by denying her U.S.S.G. Sec. 5K2.0 departure motion. We affirm.

Brown distributed or was involved in the distribution of between 400 and 700 grams of D-methamphetamine over the two-year period charged in the indictment. At sentencing, Brown moved for a downward departure, arguing that she distributed the methamphetamine in small amounts over the two-year period in question, and that the district court should follow United States v. Lara, 47 F.3d 60 (2d Cir.1995) (affirming Sec. 5K2.0 departure under "quantity/time factor" where defendants sold small amounts of drugs over a long time span). The district court denied Brown's motion, finding no reason to depart in her case and distinguishing Lara.

A court may depart from the applicable Guidelines ranges "if the court finds 'that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.' " U.S.S.G. Sec. 5K2.0, p.s. (citing 18 U.S.C. Sec. 3553(b)). If a district court's refusal to depart was an exercise of discretion, we cannot review the ruling; if, however, the district court concluded it had no authority to depart, we may review the ruling. United States v. Bieri, 21 F.3d 811, 817 (8th Cir.), cert. denied, 115 S.Ct. 208 (1994). Upon our review of the record, we conclude that the district court's refusal to depart was an unreviewable exercise of discretion. See United States v. Edgar, 971 F.2d 89, 92-93 (8th Cir.1992).

The judgment is affirmed.