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The Honorable Richard H. Kyle, United States District Judge for the District

of Minnesota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 08-1991

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United States of America, *

*

Appellee, *

* Appeal from the United States

 v. * District Court for the

* District of Minnesota.

Luetta Kaye Jacobsen, *

* [UNPUBLISHED]

Appellant. *

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Submitted: November 10, 2008

Filed: January 21, 2009

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Before MURPHY, RILEY, and GRUENDER, Circuit Judges.

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PER CURIAM.

Luetta Kaye Jacobsen (Jacobsen) pled guilty to one count of wire fraud in

violation of 18 U.S.C. § 1343. At sentencing, the district court1

 denied Jacobsen’s

motion for a downward departure for her family responsibilities under § 5H1.6 of the

United States Sentencing Guidelines (Guidelines). We affirm.
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I. BACKGROUND

In 1989, Jacobsen moved to Cabo San Lucas, Mexico (Cabo). Jacobsen began

working as a real estate agent in Cabo and eventually became an independent

franchisee of Coldwell Banker real estate company. As part of her real estate agency,

Jacobsen maintained an escrow account with First International Bank (FIB) in San

Diego, California. Jacobsen directed clients who wanted to purchase real estate in

Cabo to wire funds for the purchase of the Cabo property to the FIB escrow account.

Jacobsen told her clients the money wired to the escrow account would be held in the

account and used to purchase the property the client desired.

In September 2001, one of Jacobsen’s clients wired money to the FIB escrow

account for the purchase of property in Cabo. The client learned in December 2001

Jacobsen had not used the money wired to the FIB escrow account for the acquisition

of the Cabo property. A subsequent investigation by the Federal Bureau of

Investigation revealed Jacobsen had been transferring some of the money her clients

were wiring to the FIB escrow account to various bank accounts in Mexico. Jacobsen

then used the clients’ money for Jacobsen’s own personal expenses and other liabilities

rather than the purchase of the clients’ designated property.

On September 19, 2006, a federal grand jury indicted Jacobsen on one count of

wire fraud, a violation of 18 U.S.C. § 1343, in connection with the money Jacobsen’s

client wired to the FIB escrow account in September 2001. Jacobsen pled guilty to this

charge on August 17, 2007. Before her sentencing hearing, Jacobsen filed a motion

asking the district court for a downward departure under § 5H1.6 of the Guidelines due

to her family circumstances and responsibilities.

At the sentencing hearing, the district court denied Jacobsen’s motion for a

downward departure. The district court then sentenced Jacobsen to 27 months

imprisonment, payment of $804,035.14 in restitution, payment of a $100 special

assessment, and three years supervised release. This appeal follows.
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II. DISCUSSION

Jacobsen argues the district court abused its discretion in denying her motion for

a downward departure under § 5H1.6. Jacobsen contends a downward departure was

warranted because she is the sole caretaker, as well as the only financial and emotional

support, for her husband, who has several serious health problems which make day-today tasks virtually impossible for him to perform.

Once a district court denies a motion for a downward departure under § 5H1.6,

the district court’s decision is unreviewable unless there has been a claim that the

district court acted with an unconstitutional motive or was unaware of its authority to

make a downward departure. See United States v. Phelps, 536 F.3d 862, 868 (8th Cir.

2008) (quoting United States v. Montgomery, 525 F.3d 627, 629 (8th Cir. 2008));

United States v. Orozco-Rodriguez, 220 F.3d 940, 942 (8th Cir. 2000) (affirming a

denial of a request for a downward departure under § 5H1.6 because “we have

consistently held that the district court’s decision not to depart downward is

unreviewable so long as the court was aware of its authority to depart”).

Neither of the exceptions for reviewing a district court’s denial of a downward

departure is present in Jacobsen’s case. Jacobsen does not allege the district court

acted with any unconstitutional motive, and the district court was aware of its authority

to depart downward under § 5H1.6. During the sentencing hearing, the district court

heard argument from Jacobsen’s counsel and the government regarding Jacobsen’s

family circumstances and her motion for a downward departure. The district court then

“accept[ed] basically the representations made by Ms. Jacobsen with respect to her

husband and her caring for him in his medical condition as true and accurate,” and

denied Jacobsen’s motion for a downward departure. The district court explained it

did “not think this is a case which is so out of the ordinary from other cases where a

primary caregiver commits a crime,” and “[t]he crime which was committed here is an
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The government also argues the district court’s sentence was both procedurally

and substantively reasonable under Gall v. United States, __U.S. __, 128 S. Ct. 586

(2007). Jacobsen has not raised any challenge to the reasonableness of the sentence.

Jacobsen confined her arguments to the district court’s denial of her motion for a

downward departure under § 5H1.6. Thus, we need not address the government’s

superfluous argument regarding the reasonableness of Jacobsen’s sentence.

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extremely serious one.” Based upon this record, there are no grounds to reverse the

district court’s denial of Jacobsen’s motion for a downward departure.2

III. CONCLUSION

The judgment of the district court is affirmed.

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