Notice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That They Are Not Precedent and Generally Should Not Be Cited Unless Relevant to Establishing the Doctrines of Res Judicata, Collateral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. Tyrone Harris, Appellant, 108 F.3d 1382 (8th Cir. 1997)

Tyrone Harris pleaded guilty to possessing cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a) (1) and (b) (1) (B). Harris moved for a downward departure under U.S. Sentencing Guidelines Manual § 4A1.3, p.s. (1995), arguing that his criminal history category over-represented the seriousness of his past criminal conduct and the likelihood that he would commit other crimes. The district court¹  denied Harris's motion, and sentenced him to 87 months in prison and four years supervised release. Harris appeals, and we affirm.

Harris argues that the district court failed to recognize its full authority to grant a downward departure under section 4A1.3, because it considered only the seriousness of his criminal history and not the likelihood that he would commit further crimes. We disagree. Although the court did not specifically address the likelihood of future criminal activity, we conclude the court was fully aware of the relevant considerations under section 4A1.3 and of its authority to depart from the Guidelines: Harris's counsel and the government both addressed the recidivism factor in their arguments, and the court's statements taken as a whole indicate that it felt this was not an appropriate case for departure. See United States v. Payne, 81 F.3d 759, 765 (8th Cir. 1996) (concluding "overall context" of court's statements indicated it was aware of its authority to depart). Thus, the court's decision not to depart is unreviewable. See id. at 764.

Harris's argument that his Fifth Amendment right against double jeopardy was violated when the district court used his prior convictions to calculate his sentencing range is without merit. See United States v. Thomas, 895 F.2d 1198, 1201 (8th Cir. 1990).

Accordingly, the judgment is affirmed.