Notice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That They Are Not Precedent and Generally Should Not Be Cited Unless Relevant to Establishing the Doctrines of Res Judicata, Collateral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. Cody Donald Fitzwater, Appellant, 94 F.3d 649 (8th Cir. 1996)

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US Court of Appeals for the Eighth Circuit - 94 F.3d 649 (8th Cir. 1996)

Submitted: July 19, 1996. Filed: August 6, 1996

Before BOWMAN, MAGILL, and LOKEN, Circuit Judges.


Cody Fitzwater pleaded guilty to knowingly and intentionally manufacturing marijuana, in violation of 21 U.S.C. § 841(a) (1). At sentencing, the district court1  denied Fitzwater's motion for a downward departure under U.S.S.G. §§ 5K2.0 or 5K2.11, p.s., and sentenced him to five months imprisonment followed by two years supervised release, the first five months of which are to be served in home confinement. Fitzwater appeals.

The district court's statements at sentencing clearly indicate that it did not find departure warranted by the facts of this case. Thus, its refusal to depart was an unreviewable exercise of discretion. See United States v. Rawe, 21 F.3d 850, 852 (8th Cir. 1994) (per curiam). Accordingly, we affirm.


The Honorable H. Franklin Waters, Chief Judge, United States District Court for the Western District of Arkansas