United States v. Brian Tigner , 24 F. App'x 656 ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 01-2389
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United States of America, *
* Appeal from the United States
Appellee, * District Court for the Southern
* District of Iowa.
vs. *
* [UNPUBLISHED]
Brian J. Tigner, *
*
Appellant. *
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Submitted: December 11, 2001
Filed: January 16, 2002
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Before, McMILLIAN and MURPHY, Circuit Judges, and BATTEY,1 District Judge.
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PER CURIAM.
Brian J. Tigner pleaded guilty to conspiracy to distribute cocaine and marijuana
in violation of 21 U.S.C. § 846. He appeals the extent of the district court’s2
1
The Honorable Richard H. Battey, United States District Judge for the District
of South Dakota, sitting by designation.
2
The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.
downward departure.3 We affirm.
The district court classified Tigner’s initial base offense level at 26. He was
given a three-level reduction for his acceptance of responsibility which resulted in an
offense level of 23. Counsel for the government and the defense had reached a
stipulation as to this offense level. Tigner, however, did object to the district court’s
determination of a criminal history category VI.
The district court found that the criminal history category VI was applicable,
which resulted in a sentence range of 92 to 115 months. The court sentenced Tigner
to 115 months, the top of the sentencing range, but then departed downward to 100
months upon the government’s § 5K1.1 motion. Tigner was also credited with 38
months already served on related conduct which resulted in a 62-month sentence
remaining to be served.
We do not review the extent of a district court’s downward departure regardless
of the court’s reasons for not departing further. United States v. McCarthy, 97 F.3d
1562, 1577 (8th Cir. 1996) (citations omitted). It should be noted that Tigner does not
allege that the district court refused to depart further for an unconstitutional reason
or that the court acted in bad faith. See id. (citing United States v. Alvarez, 51 F.3d
36, 41 (5th Cir. 1995) (holding once the district court has a valid reason for departing,
the court may use any factor to determine the extent of the departure; the resulting
sentence is unreviewable unless it is in violation of federal constitutional or statutory
law). Hence, “[a]ll the statute and the Guidelines require is that the reasons for the
departure be stated.” Id. (citations omitted).
Although the district court did not provide reasons for the departure which are
3
Tigner initially sought appeal of a two-point enhancement he received under
U.S.S.G. § 4A1.1(d), but he has withdrawn this issue.
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identical to the factors listed in § 5K1.1, we find that it did appropriately follow the
rationale of the section. The district court did state the reason for its departure.
Consequently, the extent of the departure is not reviewable. Id. Accordingly, we
affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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