United States v. James Clyde Delap ( 1998 )


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  •                         United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 97-2526
    ___________
    United States of America,            *
    *
    Appellee,                 *
    * Appeal from the United States
    v.                             * District Court for the
    * Southern District of Iowa.
    James Clyde De Lap, also known as    *
    James Clyde Mathis,                  *      [UNPUBLISHED]
    *
    Appellant.                *
    ___________
    Submitted: February 24, 1998
    Filed: March 20, 1998
    ___________
    Before McMILLIAN, LOKEN, and MURPHY, Circuit Judges.
    ___________
    PER CURIAM.
    Clyde De Lap pleaded guilty to one count of being a felon in possession of a
    firearm, in violation of 18 U.S.C. § 922(g)(1). Consistent with the parties& plea
    agreement, the district court1 sentenced De Lap to 92 months imprisonment (less time
    served on a state sentence) and three years supervised release. De Lap appeals his
    sentence, and we affirm.
    1
    The HONORABLE HAROLD D. VIETOR, United States District Judge for the
    Southern District of Iowa.
    De Lap argues that paragraphs 34 and 35 of his presentence report (PSR)
    describe conduct that was not “relevant conduct” and thus should have been excluded
    from the PSR. We note, however, that the information in these paragraphs was not
    used to calculate his Guideline range. See U.S. Sentencing Guidelines Manual
    § 1B1.3(a) (1997) (providing for calculation of base offense level, specific offense
    characteristics, and adjustments under Chapter Three based on offense conduct and
    relevant conduct); cf. United States v. Guerrero-Cortez, 
    110 F.3d 647
    , 653 (8th Cir.
    1997) (no need to address allegedly erroneous sentencing computation where
    correction will not affect defendant&s sentence), cert. denied, 
    118 S. Ct. 604
    (1997).
    Moreover, De Lap does not contest the accuracy of the information; rather, he
    raises a concern about what use the Bureau of Prisons might make of the information,
    which describes De Lap&s arrest on an assault charge, and a search of his residence
    which yielded a firearm, drugs, and drug paraphernalia, among other things. Under the
    circumstances of this case, however, the district court was under no obligation to strike
    the challenged paragraphs. See United States v. Beatty, 
    9 F.3d 686
    , 689 (8th Cir.
    1993) (concluding that court did not err in refusing to strike from PSR information that
    defendant did not object to as inaccurate, but instead attacked as irrelevant and
    prejudicial; Fed. R. Crim. P. 32 does not require that objected-to material be stricken,
    and material was fairly presented and did not unfairly prejudice defendant).
    De Lap also argues that the court erred in refusing to depart downward from the
    applicable Guideline range on the basis that his criminal history category over-
    represented the seriousness of his criminal history, and that he had been subjected to
    both state and federal prosecution based on essentially the same conduct. We conclude
    the district court&s refusal to depart is unreviewable, as the refusal in each case was an
    exercise of discretion untainted by any illegal factors. See United States v. Field, 
    110 F.3d 587
    , 591 (8th Cir. 1997) (discretionary decision not to depart from Guidelines is
    unreviewable on appeal absent unconstitutional motive).
    Accordingly, we affirm.
    -2-
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
    -3-