United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 02-2621

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United States of America, *

*

Appellee, * Appeal from the United States

* District Court for the

v. * Northern District of Iowa.

*

Richard Scott McAllen, * [UNPUBLISHED]

*

Appellant. *

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Submitted: February 12, 2003

Filed: April 7, 2003

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Before BOWMAN, MORRIS SHEPPARD ARNOLD, and BYE, Circuit Judges.

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PER CURIAM.

In 2000, Richard Scott McAllen pleaded guilty to federal weapons charges and

was sentenced to twenty-seven months in prison. His plea agreement acknowledged

that the government would seek an indictment on related drug charges at a later time.

Prior to his release, the government filed the indictment in this case and McAllen

subsequently entered an unconditional plea of guilty to one count of manufacturing

and attempting to manufacture five grams or more of methamphetamine within 100

feet of a protected area. See 21 U.S.C. §§ 841(a)(1), 841(b)(1), 846, 860 (2000). He

now appeals his sentence on the methamphetamine charge. 
1

The Honorable Michael J. Melloy, United States District Judge for the

Northern District of Iowa. Judge Melloy has since been appointed United States

Circuit Judge for the Eighth Circuit and currently serves in that capacity.

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McAllen urges that his Fifth Amendment Due Process rights were violated

when the government waited some nineteen months following his arrest on the related

weapons charges (to which he pleaded guilty) to file the indictment for the instant

drug charges. He does not seek reversal of his conviction, nor could he because of

his unconditional guilty plea. See United States v. Jennings, 12 F.3d 836, 839 (1994).

Instead, he morphs his due-process argument into a sentencing issue. The delay in

indicting him on the drug charges, he argues, prejudiced him because after he was

sentenced on the federal weapons charge, his state probation was revoked (apparently

for unrelated conduct), which added one point to his criminal history and moved him

from category three to category four for purposes of sentencing on the

methamphetamine charge. This single criminal-history point effectively increased his

sentencing range from 78-97 months to 92-115 months. He was sentenced to ninetytwo months in prison and given credit for the twenty-seven months he already had

served. McAllen contends that the increase in his sentence was sufficiently

prejudicial to warrant a downward departure under U.S.S.G. § 5K2.0. McAllen,

however, never made a motion asking the District Court1

 to depart downward and he

therefore waived his claim for a downward departure. See United States v. Murphy,

248 F.3d 777, 779 (8th Cir. 2001). Even if McAllen had made a motion for a

downward departure, a district court's discretionary decision not to grant a § 5K2.0

departure from the applicable guidelines sentencing range is unreviewable absent an

allegation that the district court had an unconstitutional motive for refusing to depart

or erroneously determined that it lacked the authority to depart. United States v.

Lalley, 257 F.3d 751, 757 (8th Cir. 2001) (citing United States v. Navarro, 218 F.3d

895, 897 (8th Cir. 2000)). In any event, the prejudice alleged in this case is solely the

result of the fact that McAllen violated the terms of his state probation, causing it to

be revoked. In these circumstances, we can conceive of no reason for a district court
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to grant a downward departure under § 5K2.0, and we can see no due-process

dimension to McAllen's claim for a downward departure.

Accordingly, we affirm the judgment of the District Court.

A true copy.

Attest:

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