Notice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That No Party May Cite an Opinion Not Intended for Publication Unless the Cases Are Related by Identity Between the Parties or the Causes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. Robert G. Kirkeby, Appellant, 27 F.3d 572 (8th Cir. 1994)

Robert G. Kirkeby appeals the 78-month sentence imposed by the district court after we remanded his initial sentence of 72 months for resentencing in accordance with the Guidelines. We affirm.

On appeal, Kirkeby argues that the district court should have departed under U.S.S.G. Sec. 5K2.0 (" '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' "). Kirkeby, however, never asked the district court to depart under section 5K2.0. He is raising this argument for the first time on appeal, and the district court's failure to determine sua sponte whether it had the authority to depart did not amount to plain error. See, e.g., United States v. Jennings, 12 F.3d 836, 838, 839 (8th Cir. 1994).

Accordingly, the sentence imposed by the district court is affirmed.