United States v. Stanley King ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-2203
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Stanley Nathaniel King, * [Unpublished]
*
Appellant. *
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Submitted: June 2, 1999
Filed: July 6, 1999
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Before McMILLIAN, LOKEN, and MURPHY, Circuit Judges.
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PER CURIAM.
Stanley Nathaniel King challenges the sentence imposed on him by the district
court1 after he pleaded guilty to two counts of being a felon in possession of a firearm,
in violation of 18 U.S.C. §§ 922(g) and 924. We affirm.
For reversal, King first argues that the district court erred in applying a 1-level
increase to his Guidelines base offense level for a third firearm involved in uncharged
1
The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota.
conduct reported in the presentence report (PSR). See U.S. Sentencing Guidelines
Manual § 2K2.1(b)(1)(A) (1998) (1-level increase for offenses involving 3-4 firearms).
However, King did not challenge the PSR&s recitation of the facts or object at
sentencing to the district court&s reliance on those facts, cf. United States v.
Rodamaker, 56 F.3d 898, 902 (8th Cir. 1995) (district court allowed to draw inferences
from facts in PSR without holding evidentiary hearing where objections related to
inferences and not to facts as reported by PSR), and the district court did not clearly
err in concluding that King&s uncharged possession of a handgun should be considered
as relevant conduct. King had been repeatedly arrested with a loaded handgun over a
period of three years, and King himself argued that the anxiety brought on by his
posttraumatic stress disorder (PTSD) compels him to keep a gun and motivated his
possession in each of three separate instances. See U.S. Sentencing Guidelines Manual
§ 1B1.3(a)(2) & comment. (n.9(B)) (1998); United States v. Spence, 125 F.3d 1192,
1195 (8th Cir. 1997) (standard of review), cert. denied, 118 S. Ct. 1544 (1998); United
States v. Griggs, 71 F.3d 276, 281 (8th Cir. 1995) (district court must consider all
relevant conduct in determining sentence, “whether uncharged, charged, or charged and
dismissed”).
King also challenges the district court&s denial of his motion for a downward
departure based on his PTSD. See U.S. Sentencing Guidelines Manual § 5K2.13, p.s.
(1997) (departures for diminished capacity). That decision, however, is unreviewable
because the district court recognized its authority to depart, and found this was not an
appropriate case for departure. See United States v. Jones, 145 F.3d 959, 964-65 (8th
Cir.) (discretionary decision not to grant U.S.S.G. § 5K2.13 departure motion is
unreviewable), cert. denied, 119 S. Ct. 457 (1998).
Accordingly we affirm.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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