United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 03-1141

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United States of America, *

*

Appellee, * Appeal from the United States

* District Court for the District

v. * of South Dakota.

* 

Walter Gonzalez, * [UNPUBLISHED]

*

Appellant. *

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Submitted: November 19, 2003

Filed: December 22, 2003

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Before MURPHY, LAY, and FAGG, Circuit Judges.

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PER CURIAM.

Walter Gonzalez pleaded guilty to conspiracy to possess with intent to

distribute methamphetamine, distribution of methamphetamine, and possession with

intent to distribute methamphetamine. See 21 U.S.C. §§ 841(a)(1), 846. At

sentencing, Gonzalez argued he should not have been held accountable, for purposes

of determining his base offense level, for certain drugs seized during a search of an

apartment occupied by his codefendant, Marcos Salamanca. Gonzalez also requested

a downward departure, arguing he had shown extraordinary acceptance of

responsibility by pleading guilty to all counts of the six-count indictment, and by

testifying at Salamanca’s trial, exculpating Salamanca at the risk of harming his own
*

The Honorable Karen E. Schreier, United States District Judge for the District

of South Dakota.

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sentencing posture. In response, the government offered evidence Gonzalez had

rented the apartment from which the drugs were seized, had paid rent to the landlord

in cash, and had once directed Salamanca to retrieve drugs from the apartment’s

freezer and deliver them to Gonzalez at a restaurant. The government also argued

Gonzalez deserved an upward departure for obstruction of justice for testifying

falsely at Salamanca’s trial, which ended in a hung jury and preceded Salamanca’s

guilty plea, rather than a downward departure for extraordinary acceptance of

responsibility. 

The district court*

 overruled Gonzalez’s drug-quantity objection and attributed

to him the drugs found in the residence along with uncontroverted quantities he

distributed to an undercover detective; declined to depart from the Sentencing

Guidelines imprisonment range upon finding a departure unwarranted by the facts of

the case; and sentenced Gonzalez to 121 months in prison and four years of

supervised release.

Gonzalez appeals his sentence, challenging the district court’s drug-quantity

finding. Gonzalez argues the evidence introduced at sentencing showed only that he

had “loaned” Salamanca money by paying rent to the landlord. Gonzalez further

argues his admitted conduct of instructing Salamanca to retrieve drugs from the

apartment’s freezer some six months before the residence was searched provided only

an “ambiguous” connection to the drugs seized during the search. These arguments

do not convince us the district court committed clear error, or leave us with a definite

and firm conviction that a mistake has been made concerning the drug-quantity

finding. See United States v. Nunez, 257 F.3d 758, 764 (8th Cir. 2001) (standard of

review; affirming drug-quantity finding despite defendant’s contention he had sublet

house in which drugs were found). Gonzalez also challenges the district court’s
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denial of his request for a downward departure, but this is an unreviewable exercise

of discretion. See United States v. Elkins, 16 F.3d 952, 954 (8th Cir. 1994). We

cannot review a sentencing court’s refusal to depart from the guidelines absent an

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

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

States v. McCarthy, 97 F.3d 1562, 1578 (8th Cir. 1996); United States v. Edwards,

225 F.3d 991, 992-93 (8th Cir. 2000). Accordingly, we affirm.

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