Notice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That They Are Not Precedent and Generally Should Not Be Cited Unless Relevant to Establishing the Doctrines of Res Judicata, Collateral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. Benny Council, Appellant, 111 F.3d 135 (8th Cir. 1997)

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U.S. Court of Appeals for the Eighth Circuit - 111 F.3d 135 (8th Cir. 1997) Submitted March 5, 1997. Filed April 15, 1997

Before McMILLIAN, FAGG and LOKEN, Circuit Judges.


Benny Council pleaded guilty to making false statements during the purchase of a firearm, in violation of 18 U.S.C. § 922(a) (6). The presentence report (PSR) recommended a Guidelines range of 33-41 months, including a four-level enhancement pursuant to U.S. Sentencing Guidelines Manual § 2K2.1(b) (5) (1995). The district court1  adopted the PSR, but departed downward based on the government's motion under U.S. Sentencing Guidelines Manual § 5K1.1 (1995), sentencing Council to 15 months imprisonment.

On appeal, Council challenges the section 2K2.1(b) (5) enhancement and the government's support of the enhancement at the sentencing hearing, claiming such support constituted a breach of the plea agreement. Without application of the four-level section 2K2.1(b) (5) enhancement, Council's total offense level of 14 and his category III criminal history score would have yielded a Guidelines sentencing range of 21 to 27 months. Because Council's 15-month sentence represents a downward departure from that range, his sentence is unreviewable. See United States v. Baker, 64 F.3d 439, 441 (8th Cir. 1995); United States v. Wyatt, 26 F.3d 863, 864 (8th Cir. 1994) (per curiam).

Accordingly, we affirm.


The Honorable John R. Tunheim, United States District Judge for the District of Minnesota