The HONORABLE HAROLD D. VIETOR, United States District Judge for th e 1 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 James Clyde De Lap, also known as * James Clyde Mathis, * [UNPUBLISHED] * Appellant.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 D e Lap pleaded guilty to one count of being a felon in possession of a firear m, in violation of 18 U.S.C. § 922(g)(1). Consistent with the parties & ple a agreement, the distric t court sentenced De Lap to 92 months imprisonment (less time 1 servedon a state sentence) and three years supervised release. De Lap appeals hi s sentence, and we affirm.-2-

De Lap argues that paragraphs 34 and 35 of his presentence report (PSR ) describe conduct that was no t “relevant conduct” and thus should have been excluded fromt he PSR. We note, however, that the information in these paragraphs was no t use d to calculate his Guideline range. See U.S. Sentencing Guidelines Manua l § 1B1.3(a ) (1997) (providing for calculation of base offense level, specific offens e characte ristics, and adjustments under Chapter Three based on offense conduct an d rel evant conduct); cf. United States v. Guerrero-Cortez , 110 F.3d 647, 653 (8th Cir

. 1997) (n o need to address allegedly erroneous sentencing computation wher e correction will not affect defendant & s sentence), cert. denied , 118 S. Ct. 604 (1997). M o reover, De Lap does not contest the accuracy of the information; rather, he raises a concern abo ut what use the Bureau of Prisons might make of the information, which de scribes De Lap & s arrest on an assault charge, and a search of his residenc e which yielded a firearm, drugs, and dru g paraphernalia, among other things. Under the circumstances of this case, however, the district court was under no obligation to strike the challe nged paragraphs. See United States v. Beatty , 9 F.3d 686, 689 (8th Cir

. 1993) (concluding that court did not err in r efusing to strike from PSR information that defendant d id not object to as inaccurate, but instead attacked as irrelevant an d prejudicial; Fed. R. Cr

im. 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 applica ble Guideline range on the basis that his criminal history category over

represented the seriousness of his criminal history, and that he had been subjected to both state and federal prosecution based on essentially the same con duct. We conclude the district court & s refusal to depa rt 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.-3-

A true copy.

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