The Honorable George F. Gunn, Jr., United States District

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Judge for the Eastern District of Missouri.

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No. 94-3840

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United States of America, *

 *

Appellee, *

 * Appeal from the United States

v. * District Court for the

 * Eastern District of Missouri.

James Frederick Clark, * [UNPUBLISHED]

 *

Appellant. *

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 Submitted: December 14, 1995

 Filed: December 26, 1995

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Before WOLLMAN, MAGILL, and HANSEN, Circuit Judges.

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PER CURIAM.

James Frederick Clark challenges the 193-month sentence imposed on

him by the district court following his guilty plea to possessing

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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
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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.