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 1995-12

United States v. James F. Clark ( 1995 )


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  •                                       ___________
No. 94-3840
___________
United States of America,                   *
*
Appellee,                     *
* Appeal from the United States
v.                                    * District Court for the
* Eastern District of Missouri.
James Frederick Clark,                      *       [UNPUBLISHED]
*
Appellant.                    *
___________
Submitted:      December 14, 1995
Filed:     December 26, 1995
___________
Before WOLLMAN, MAGILL, and HANSEN, Circuit Judges.
___________
PER CURIAM.
James Frederick Clark challenges the 193-month sentence imposed on
him   by   the district court1 following his guilty plea to possessing
methamphetamine with intent to distribute, in violation of
    21 U.S.C. § 841
    (a)(1), (b)(1)(A).     For reversal, Clark argues that the district court
did not recognize its authority to depart downward under U.S.S.G. § 4A1.3
(stating in relevant part that district court may depart from applicable
Guidelines    range   if   reliable    information   indicates   that   defendant's
criminal history category does not adequately reflect seriousness of
defendant's past criminal conduct or likelihood that defendant will commit
other crimes).    We affirm.
In his objections to the presentence report, Clark complained that
his convictions for driving on a revoked or suspended license
1
The Honorable George F. Gunn, Jr., United States District
Judge for the Eastern District of Missouri.
added 60 months' imprisonment to his sentence, resulting in a sentence that
violated the Eighth Amendment.          At sentencing, Clark argued that because
his collection of "minor misdeeds" had resulted in an additional five
years' imprisonment, "imposition of sentence under the guidelines" was
extremely punitive.
We may not review a district court's decision not to depart downward
under section 4A1.3 so long as when the district court was aware of its
authority to do so.      See United States v. Hall,
    7 F.3d 1394
    , 1396 (8th Cir.
1993).    Assuming that Clark sufficiently alerted the district court that
he was seeking a section 4A1.3 departure, and thus preserved the issue for
appeal, we are persuaded that the district court understood its authority
to depart under section 4A1.3.          Even if the district court misunderstood
its authority, we believe that the court's imposition of a sentence well
above the bottom of the applicable range indicates that the court would not
have been inclined to depart.         Cf. Williams v. United States,
    503 U.S. 193
    ,
201-04 (1992) (where district court departs based on both proper and
improper factors and thus misapplies Guidelines, remand is required unless
reviewing     court   concludes   on    basis    of   whole   record   that    error    was
harmless).
Clark also argues that his sentence is disproportionate to his
offense and thus violates the Eighth Amendment.              This argument fails.       See
Neal     v.   Grammar,
    975 F.2d 463
    ,     465   (8th    Cir.   1992)    (future    of
proportionality test is uncertain; this court narrowly reviews sentence to
determine if it is grossly disproportionate and will not disturb sentence
within statutory limit absent abuse of discretion); cf. Harmelin v.
Michigan,
    501 U.S. 957
    , 994, 1009 (1991) (life sentence without parole for
first offense of cocaine possession does not violate Eighth Amendment).
Accordingly, the judgment is affirmed.
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A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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