Notice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That No Party May Cite an Opinion Not Intended for Publication Unless the Cases Are Related by Identity Between the Parties or the Causes of Action.united States of America, Plaintiff-appellee, v. Kenneth L. Shriver, Defendant-appellant, 68 F.3d 479 (8th Cir. 1995)Annotate this Case
Before HANSEN, BRIGHT, and MURPHY, Circuit Judges.
Kenneth L. Shriver appeals from a district court1 judgment sentencing him to imprisonment for one year and one day. Shriver contends that the district court erred by denying his motion for a downward departure. The district court recognized its power to depart downward but found that departure was not warranted. This exercise of discretion is not subject to appellate review. Kok v. United States, 17 F.3d 247, 250 (8th Cir. 1994).
Shriver also argues that the district court incorrectly determined the amount of loss pursuant to United States Sentencing Commission, Guidelines Manual, Sec. 2F1.1 (Nov. 1994). While Shriver made written objections to the initial draft of the presentence investigation report and its proposed loss calculation, he failed to renew any objection to the loss calculation contained in the revised presentence investigation report which was before the district court and which was used to determine his adjusted offense level. The defendant made no objection when the court made the following finding from the bench: "The defendant has not filed any objections or statements to the presentence report; accordingly, the court finds the defendant has adopted the revised presentence report." Sent. Tr. at 24. Nor did the defendant object when the district court announced in open court, "I find ... that there is an adjustment upwards of seven offense levels because of the amount of loss involved." Id. at 24-25. We therefore can only review for plain error. Fed. R. Crim. P. 52(b); United States v. Olano, 113 S. Ct. 1770, 1773 (1993). After carefully examining the record and the parties' briefs, we find no plain error. Accordingly, we affirm the judgment of the district court. See 8th Cir. R. 47B.
The Honorable Lyle E. Strom, United States District Judge for the District of Nebraska