The HONORABLE HAROLD D. VIETOR, United States District Judge for the

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Southern District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 97-2526

___________

United States of America, *

 *

Appellee, *

 * Appeal from the United States

v. * District Court for the

 * Southern District of Iowa.

James Clyde De Lap, also known as *

James Clyde Mathis, * [UNPUBLISHED]

 *

Appellant. *

___________

 Submitted: February 24, 1998

 Filed: March 20, 1998

___________

Before McMILLIAN, LOKEN, and MURPHY, Circuit Judges.

___________

PER CURIAM.

Clyde De Lap pleaded guilty to one count of being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1). Consistent with the parties& plea

agreement, the district court sentenced De Lap to 92 months imprisonment (less time 1

served on a state sentence) and three years supervised release. De Lap appeals his

sentence, and we affirm.
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De Lap argues that paragraphs 34 and 35 of his presentence report (PSR)

describe conduct that was not “relevant conduct” and thus should have been excluded

from the PSR. We note, however, that the information in these paragraphs was not

used to calculate his Guideline range. See U.S. Sentencing Guidelines Manual

§ 1B1.3(a) (1997) (providing for calculation of base offense level, specific offense

characteristics, and adjustments under Chapter Three based on offense conduct and

relevant conduct); cf. United States v. Guerrero-Cortez, 110 F.3d 647, 653 (8th Cir.

1997) (no need to address allegedly erroneous sentencing computation where

correction will not affect defendant&s sentence), cert. denied, 118 S. Ct. 604 (1997). 

Moreover, De Lap does not contest the accuracy of the information; rather, he

raises a concern about what use the Bureau of Prisons might make of the information,

which describes De Lap&s arrest on an assault charge, and a search of his residence

which yielded a firearm, drugs, and drug paraphernalia, among other things. Under the

circumstances of this case, however, the district court was under no obligation to strike

the challenged paragraphs. See United States v. Beatty, 9 F.3d 686, 689 (8th Cir.

1993) (concluding that court did not err in refusing to strike from PSR information that

defendant did not object to as inaccurate, but instead attacked as irrelevant and

prejudicial; Fed. R. Crim. P. 32 does not require that objected-to material be stricken,

and material was fairly presented and did not unfairly prejudice defendant). 

De Lap also argues that the court erred in refusing to depart downward from the

applicable Guideline range on the basis that his criminal history category overrepresented the seriousness of his criminal history, and that he had been subjected to

both state and federal prosecution based on essentially the same conduct. We conclude

the district court&s refusal to depart is unreviewable, as the refusal in each case was an

exercise of discretion untainted by any illegal factors. See United States v. Field, 110

F.3d 587, 591 (8th Cir. 1997) (discretionary decision not to depart from Guidelines is

unreviewable on appeal absent unconstitutional motive).

Accordingly, we affirm.
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A true copy.

Attest:

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