### The Honorable George F. Gunn, Jr., United States Distric t 1 

### Judge for the Eastern District of Missouri. ___________ No. 94-3840

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. James Frederick Clark, * [UNPUBLISHED] * Appellant. *

___________ Submitted: December 14, 1995 Filed: December 26, 1995

___________ Before WOLLMAN, MAGILL, and HANSEN, Circuit Judges.

___________
PER CURIAM.
Ja mes Frederick Clark challenges the 193-month sentence imposed o n himby th e district court following his guilty plea to possessin g 1 metham phetamine with intent to distribute, in violation of 21 U.S.C
. § 841(a)(1), (b)(1)(A). For reversal, Clark argues that the district cour t 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 cr iminal history category does not adequately reflect seriousness o f defendant's past criminal conduct or likelihood that defendant will commit other crimes). We affirm.

In his objections to the presentence report, Clark complained tha t 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 tha t violated the Eighth Amendment. At sentencing, Clark argued that because his col lection of "minor misdeeds" had resulted in an additional fiv e year s' imprisonment, "imposition of sentence under the guidelines" wa s extremely punitive.
We may not review a district court's decision not to depart downward under s ection 4A1.3 so long as when the district court was aware of it s 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 th us preserved the issue for appeal, we are persua ded 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 no t 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 an d improper factors and thus misapplies Guidelines, remand is required unless revie wing court concludes on basis of whole record that error wa s harmless).

Clark also argues that his sentence is disproportionate to hi s offense and thus violates the Eighth Amendment. This argument fails. See Neal v . Grammar , 975 F.2d 463, 465 (8th Cir. 1992) (future o f proportionality test is uncertain; this court na rrowly reviews sentence to determine if it is gr ossly 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 s entence without parole for first offense of cocaine possession does not violate Eighth Amendment).
Accordingly, the judgment is affirmed.

### -3- A true copy.

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