Notice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That They Are Not Precedent and Generally Should Not Be Cited Unless Relevant to Establishing the Doctrines of Res Judicata, Collateral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. Frank E. Huff, Appellant, 124 F.3d 209 (8th Cir. 1997)

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U.S. Court of Appeals for the Eighth Circuit - 124 F.3d 209 (8th Cir. 1997)

Submitted Sept. 22, 1997Filed Sept. 25, 1997


Appeals from the United States District Court for the Western District of Missouri.

Before McMILLIAN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

PER CURIAM.


Frank E. Huff pleaded guilty to conspiring to possess with intent to distribute, and to distribute, phencyclidine (PCP) within 1000 feet of a public elementary school, in violation of 21 U.S.C. §§ 841(a) (1), (b) (1) (B) and 860. The district court1  sentenced him to 100 months imprisonment and 8 years supervised release, and Huff appeals. Appointed counsel has filed a brief under Anders v. California, 386 U.S. 738 (1967), and Huff has not filed a supplemental brief. We affirm.

In his Anders brief, counsel argues that the district court erred by not departing downward based on Huff's argument at sentencing that his criminal history category overstated the seriousness of his past conduct. See U.S. Sentencing Guidelines Manual § 4A1.3, p.s. (district court may depart where criminal history does not adequately reflect seriousness of defendant's past conduct or likelihood defendant will commit future crimes) (1995). Nothing said during the sentencing hearing indicates the court believed it lacked authority to depart downward, and we find the district court's refusal to depart to be an unreviewable exercise of discretion. See United States v. Hall, 7 F.3d 1394, 1396 (8th Cir. 1993) (this court will not review sentencing court's decision not to depart downward under § 4A1.3 when it was aware of its authority to do so).

After conducting the record review required under Penson v. Ohio, 488 U.S. 75, 80 (1988), we find no non-frivolous issues.

Accordingly, we affirm.

 1

The Honorable Dean Whipple, United States District Judge for the Western District of Missouri