United States of America, Appellee, v. Justin Huntley Mccarthy, Appellant, 53 F.3d 335 (8th Cir. 1995)

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U.S. Court of Appeals for the Eighth Circuit - 53 F.3d 335 (8th Cir. 1995) Submitted: Apr. 27, 1995. Filed: May 2, 1995

Before FAGG, MAGILL, and BEAM, Circuit Judges.


Justin Huntley McCarthy appeals his 60-month sentence imposed by the district court1  after he pleaded guilty to a child pornography charge. For reversal, he argues only that, given his health conditions, the district court erred in not granting him a downward departure under U.S.S.G. Sec. 5H1.4. Although section 5H1.4 authorizes downward departures based on extraordinary physical condition, we will not reverse a district court's refusal to depart downward where it was aware of its authority to do so. United States v. Brown, 903 F.2d 540, 545 (8th Cir. 1990); United States v. Evidente, 894 F.2d 1000, 1004-05 (8th Cir.), cert. denied, 495 U.S. 992 (1990). Here, the court was clearly aware of its authority to depart for physical condition, but simply did not believe the circumstances in this case warranted such a departure.

Accordingly, the judgment is affirmed.


The Honorable Paul A. Magnuson, Chief Judge, United States District Court for the District of Minnesota