United States of America, Appellee, v. Delphine Marie Boyd, Appellant, 52 F.3d 331 (8th Cir. 1995)

After a confrontation with Noella Tyndall during a house party, Delphine Marie Boyd stabbed Tyndall and her companion, Luther Thomas, outside the house. Boyd pleaded guilty to assault with a knife in violation of 18 U.S.C Secs. 113(c) and 1153, and the district court¹  sentenced her to 37 months in prison and three years of supervised release. Boyd appeals her sentence, arguing that the district court erred in refusing to depart downward from the applicable Guidelines range on the basis of victim misconduct. See U.S.S.G. Sec. 5K2.10. However, it is clear from the record that the district court was aware of its authority to depart under Sec. 5K2.10 but concluded that a departure was not warranted on the facts of this case. That conclusion is not reviewable on appeal. See, e.g., United States v. Brown, 18 F.3d 1424, 1425 (8th Cir. 1994) (per curiam).

Accordingly, we affirm.