Notice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That They Are Not Precedent and Generally Should Not Be Cited Unless Relevant to Establishing the Doctrines of Res Judicata, Collateral Estoppel, the Law of the Case, or if the Opinion Has Persuasive Value on a Material Issue and No Published Opinion Would Serve As Well.united States of America, Appellee, v. William E. Thompson, Appellant, 994 F.2d 844 (8th Cir. 1993)

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US Court of Appeals for the Eighth Circuit - 994 F.2d 844 (8th Cir. 1993) Submitted: May 11, 1993. Filed: May 21, 1993

Before BOWMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and MAGILL, Circuit Judge.


William E. Thompson appeals the twenty-seven-month sentence imposed by the District Court1  following his guilty plea to possessing cocaine with the intent to distribute it, in violation of 21 U.S.C. §§ 841(a) (1) and (b) (1) (C) (1988). We affirm.

The presentence report (PSR) calculated Thompson's total offense level as 18 and his criminal history category as I, yielding a sentencing range of 27 to 33 months. Neither party objected to the PSR. At sentencing, Thompson's counsel moved for a downward departure under U.S.S.G. § 5K2.0, p.s., citing the following factors (individually and in combination) as support: (1)

Thompson unsuccessfully attempted to provide assistance to the government; (2) Thompson owned his own business and supported his wife and young son; (3) his wife suffered from psychiatric and substance-abuse problems and would be unable to care adequately for their son on her own; and (4) while on bond, Thompson remained drug free and tried to rehabilitate himself. The court denied the motion and sentenced Thompson at the low end of the range. On appeal, Thompson argues that the District Court erroneously concluded that it lacked authority to depart.

We have jurisdiction to review a claim that the sentencing court believed it lacked authority to depart from the Guidelines range. United States v. Garlich, 951 F.2d 161, 163 (8th Cir. 1991). We do not, however, have jurisdiction to review the sentencing court's discretionary decision not to depart. United States v. Edgar, 971 F.2d 89, 93 (8th Cir. 1992). We reject Thompson's claim that the District Court believed it lacked authority to depart. The sentencing transcript reveals that the District Court realized it had authority to depart under section 5K2.0, but did not find the circumstances identified by defense counsel sufficiently unusual to support a departure.

Accordingly, the judgment of the District Court is affirmed.


The Honorable Scott O. Wright, Senior United States District Judge for the Western District of Missouri