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Hon. Harry F. Barnes, United States District Judge for the Western District

of Arkansas. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 03-2838

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Western District of Arkansas

Glenn Thomas Ferrell, *

* [UNPUBLISHED]

Appellant. *

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Submitted: May 11, 2004

Filed: May 24, 2004

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Before MORRIS SHEPPARD ARNOLD, McMILLIAN and MELLOY, 

Circuit Judges.

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PER CURIAM.

Glenn Thomas Ferrell appeals from a final order entered in the United States

District Court1

 for the Western District of Arkansas finding him guilty, pursuant to

a guilty plea, of possession of an unregistered firearm, in violation of 26 U.S.C.

§ 5861(c), (d). The district court denied appellant’s motion for a downward departure
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under U.S.S.G. § 5K2.0 and sentenced appellant to 18 months imprisonment, 3 years

supervised release, and a special assessment of $100. For reversal, appellant argues

that the district court abused its discretion in denying his motion for downward

departure. We hold that we lack authority to review the denial of the motion for

downward departure and, accordingly, affirm the sentence imposed by the district

court.

The underlying facts are not disputed. In September 2001 law enforcement

officers executed a search warrant at the residence of appellant’s uncle. Appellant

had been staying at the residence and was present during the search. Officers seized

several firearms from the residence, including a rifle with a shortened barrel and an

attached magazine from underneath the bed where appellant had been sleeping. The

rifle was not registered to appellant in the National Firearms Registration and

Transfer Record as required.

A federal grand jury indicted appellant, charging him with being an unlawful

user of a controlled substance in possession of a firearm in violation of 18 U.S.C.

§ 922(g)(3), and possessing an unregistered firearm in violation of 26 U.S.C.

§ 5861(c), (d). Appellant entered a not guilty plea and was released on bond.

Appellant later changed his plea and entered a guilty plea, pursuant to a written plea

agreement, to the unregistered firearm count. Appellant requested a downward

departure under U.S.S.G. § 5K2.0. The district court acknowledged its authority to

depart downward, but stated that it was not inclined to do so, and sentenced appellant

to 18 months imprisonment, 3 years supervised release and a special assessment of

$100. The district court also recommended participation in an intensive drug

treatment program. This appeal followed.

Appellant acknowledges that case law holds that the denial of a motion for

downward departure is not reviewable on appeal but urges the court to reconsider that

position, especially where “the fundamental right of liberty is at stake.” On the
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merits, appellant argues that the district court abused its discretion in denying his

motion for downward departure. He argues that the district court should have

sentenced him to probation, or a drug rehabilitation program, because the offense

conduct was an aberrant act inconsistent with his character and lack of a criminal

history. He also argues that the sentence overrepresented his criminal culpability and

that there were significant mitigating circumstances.

Here, the district court was aware that it had the authority to grant a downward

departure but decided not to do so. The sentencing court’s discretionary denial of a

motion for downward departure is not reviewable on appeal. See, e.g., United States

v. Evidente, 894 F.2d 1000, 1004 (8th Cir.), cert. denied, 495 U.S. 922 (1990). That

decision remains controlling authority; a panel of this court cannot overrule the

decision of another panel.

Accordingly, we affirm the sentence imposed by the district court. 

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