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The Honorable Michael J. Melloy, Chief Judge, United States

District Court for the Northern District of Iowa. 

___________

No. 96-1595

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* Northern District of Iowa

Lon Michael Caslavka, *

* [UNPUBLISHED]

Appellant. *

___________

 Submitted: December 3, 1996

 Filed: December 17, 1996 ___________

Before McMILLIAN, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit

Judges. ___________

PER CURIAM.

Lon Michael Caslavka pleaded guilty to income tax evasion in

violation of 26 U.S.C. § 2601, and making a false statement to a

federally-insured financial institution in violation of 18 U.S.C.

§ 1014. The United States District Court1 for the Northern

District of Iowa imposed a sentence of two concurrent 21-month

terms of imprisonment, 3 years supervised release, and $15,000

restitution. Caslavka appeals. Counsel has filed a brief pursuant

to Anders v. California, 386 U.S. 738 (1967). We granted Caslavka

leave to file a pro se supplemental brief, which he has not done.

For the reasons discussed below, we affirm.

 At the time Caslavka committed the federal offenses, he was

on probation for a 1988 state conviction. In 1993, a jury
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convicted Caslavka in state court of first-degree theft in

connection with money Caslavka had misappropriated. As a result of

that theft conviction, the Iowa state court revoked Caslavka's

probation, and he served 14 months imprisonment before the Iowa

Supreme Court reversed his theft conviction. See State v.

Caslavka, 531 N.W.2d 102 (Iowa 1995). 

At sentencing following his guilty plea to the federal charges

(and while he was on parole for the 1988 state conviction),

Caslavka sought "some type of credit" for the 14 months he served

as a result of the overturned state theft conviction. He argued

that the district court should depart downward by 14 months, or

should consider applying U.S. Sentencing Guidelines Manual

§ 5G1.3(b) (1995) (concurrent sentences shall be imposed where

undischarged term of imprisonment resulted from offense fully taken

into account in instant offense level) and application note 2

(providing for adjusted concurrent sentence in subsection (b)

cases). 

The district court rejected the request for a downward

departure. The district court also found Guidelines § 5G1.3(b) was

inapplicable. The district court stated that different (although

perhaps intertwined) conduct formed the basis for the theft charge

and the federal charges; and even if the probation revocation

rested on conduct underlying the federal charges, application note

6 (providing for consecutive sentence where probation has been

revoked)--rather than application note 2--would apply. 

We may review a district court's refusal to depart downward

only if the refusal "is premised on the belief that the court

lacked the authority to [depart]." United States v. Jenkins, 78

F.3d 1283, 1290 (8th Cir. 1996). Otherwise, a district court's

refusal to exercise its discretion and depart is unreviewable. Id.

We conclude that the record as a whole indicates that the district

court's decision not to depart was premised ultimately on its
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belief that the facts of this case did not warrant a departure.

Thus, the court's decision is unreviewable. See United States v.

Bieri, 21 F.3d 811, 818 (8th Cir.), cert. denied, 115 S. Ct. 208

(1994). 

We review de novo the district court's application of

Guidelines § 5G1.3. United States v. Brewer, 23 F.3d 1317, 1320

(8th Cir. 1994). We agree with the district court that, because

Caslavka's offense level for tax evasion and false statements did

not take into account the separate but related offense of theft

which led to his serving 14 months in state prison, Guidelines

§ 5G1.3(b) did not apply. Furthermore, because the overturned

theft conviction was not included in the calculation of Caslavka's

criminal history score, and the time served in state prison

resulted from probation revocation, we conclude the district court

properly declined to make the federal sentence concurrent with the

state sentence. See U.S. Sentencing Guidelines Manual § 5G1.3(c)

& comment. (n.6) (1995).

Having carefully reviewed the record, we find no other

nonfrivolous issues for appeal. See Penson v. Ohio, 488 U.S. 75,

80 (1988). Accordingly, we affirm.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.