UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4011

MICHAEL BRUCE SASSANI,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Deborah K. Chasanow, District Judge.

(CR-96-12DKC)

Argued: December 5, 1997

Decided: March 4, 1998

Before NIEMEYER, Circuit Judge, BUTZNER, Senior Circuit

Judge, and MICHAEL, Senior United States District Judge for the

Western District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Roger Mark Adelman, KIRKPATRICK & LOCKHART,

L.L.P., Washington, D.C., for Appellant. Sandra Wilkinson, Assistant

United States Attorney, Greenbelt, Maryland, for Appellee. ON

BRIEF: Lynne A. Battaglia, United States Attorney, Beth P. Gesner,

Assistant United States Attorney, Greenbelt, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Background

In 1994, the Federal Bureau of Investigation was notified by an

America OnLine1 customer and police officer, Richard Ivey, of

receipt of unsolicited pornographic graphic2 image files from another

America OnLine subscriber by the name of "BIG MIKE 8." In September 1994, a special agent of the FBI, acting in an undercover

capacity, engaged in electronic conversations with BIG MIKE 8, in

connection with which BIG MIKE 8 transmitted, via America

OnLine, at least five sexually explicit graphic images of persons

apparently under the age of eighteen. In October 1994, a cooperating

witness also received from BIG MIKE 8 an electronically transmitted

message and sexually explicit graphic image of two persons apparently under the age of eighteen. Further investigation revealed the

subscriber "BIG MIKE 8" to be registered as Michael Bruce Sassani.

In March 1995, four more sexually explicit graphic images, including

pictures of individuals apparently under the age of eighteen, were

electronically transmitted to undercover agents by BIG MIKE 8.

On 13 September 1995, Federal Bureau of Investigation (FBI)

agents executed a search warrant at the home of Michael Sassani in

Maryland. During the six-hour search, the agents seized Mr. Sassani's

personal computer, 382 floppy disks, numerous personal documents

and photographs, and a small quantity of narcotics. 3 After extensive

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1 America OnLine is a commercial computer service and online access

provider.

2 The court uses the adjective"graphic" only to identify the electronic

files as pictorial representations.

3 Mr. Sassani has been charged in Maryland state court with possession

of narcotics. The case is pending.

 2
review of the hard drive of the computer and the 382 floppy diskettes

seized, the FBI determined that the drive and the disks contained a

total of 176 visual depictions of minors engaged in sexually explicit

conduct.4 The agents concluded that at least ten of the pictures portrayed individuals under twelve years of age.

On January 22, 1996, defendant was indicted on six counts for violations of the Protection of Children Against Sexual Exploitation Act,

18 U.S.C. §§ 2251-2260 (West 1997). On May 20, 1996, the district

court denied all of the defendant's pretrial motions, which included

motions to suppress evidence, for an evidentiary hearing regarding the

execution of the search warrant, and for an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). The United States

filed a superseding indictment against Mr. Sassani on May 29, 1996.

On July 29, 1996, Mr. Sassani entered a conditional plea of guilty to

Count VI of the superseding indictment. Count VI charged possession

of child pornography in violation of 18 U.S.C. § 2252(a)(4). As part

of the factual stipulations underlying the plea, the defendant admitted

to transmitting pornography on September 30, 1994. At the conclusion of a four-day sentencing hearing, the district court sentenced Mr.

Sassani to eighteen months incarceration.5 The defendant raises three

issues on appeal. First, the defendant argues that the district court

erred when it denied an evidentiary hearing on the defendant's challenge to the sufficiency of the affidavit underlying the application for

a search warrant. Second and related to the first, the defendant argues

that the district court erred in denying the defendant's motion to suppress the evidence seized under the search warrant. Finally, defendant

argues that the district court erred in refusing to depart downward for

reduced mental capacity.

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4 On the hard drive of the defendant's computer were 16,226 files, of

which 56 were graphic images of individuals apparently under eighteen

years of age. On 382 floppy diskettes were 6,731 files of which 120 were

graphic images of individuals apparently under eighteen.

5 This was the minimum possible sentence in the Sentencing Guideline

range.

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The Franks Hearing

The defendant argues first that the district court erred in refusing

to hold a hearing on the defendant's motion to suppress the evidence

seized from Mr. Sassani's home. However, a hearing on a motion to

test the sufficiency of the warrant is required only under certain circumstances. Simmons v. Poe explains:

This Court has construed the Supreme Court's opinion in

Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57

L.Ed.2d 667 (1978), very strictly, finding in large part that

Franks hearings are not required unless an omission from a

warrant affidavit is the product of a deliberate falsehood or

done in reckless disregard of the truth. In United States v.

Colkley, 899 F.2d 297 (4th Cir. 1990), this Court articulated

the two-pronged standard under which Franks claims must

be analyzed. In that case, we addressed whether an evidentiary hearing was required under Franks where the defendant

challenged the affidavit used in support of his arrest warrant

on the grounds that it failed to note that numerous witnesses

did not identify him in a photographic spread, and because

the police officer based the height description of the defendant in disregard of the testimony of some witnesses. 899

F.2d at 299. In finding that a Franks hearing on the facial

validity of the affidavit was not warranted, we articulated a

two-part threshold test for making such a determination: a

Franks hearing is warranted if (1) the defendant makes a

substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the

truth, was included by the affiant in a warrant affidavit, and

(2) the defendant shows that the false information was

essential to the probable cause determination. Id. at 300.

47 F.3d 1370, 1378 (4th Cir. 1995). See also United States v. Hartsell,

127 F.3d 343 (4th Cir. 1997), citing United States v. Jeffus, 22 F.3d

554, 559 (4th Cir. 1994) ("We have held that a defendant must first

make a showing that an affiant's statement in a warrant affidavit was

deliberately or recklessly false and that the remaining facts contained

in the affidavit are inadequate to sustain a finding of probable

cause."). In the instant case, the defendant must show that information

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to which he objects was an intentionally false statement or one made

with "reckless disregard for the truth." Id. Additionally, however, the

defendant bears the burden of showing that the information to which

he objects was central to the finding of probable cause. The defendant

has failed to make this showing.

The search warrant contained a seventeen-page affidavit filed by

FBI Special Agent Courtland C. Jones. The affidavit contained six

sections (Introduction, Child Pornographers, Computers and Child

Pornography, America OnLine, Probable Cause, and Search & Seizure of Computer Systems). The defendant objects particularly to

Section II (Child Pornographers) and Section V (Probable Cause) of

the affidavit, arguing that the use of a profile in Section II was in

"reckless disregard of the truth" and that Section V contains misstatements of fact.

Section II presents Special Agent Ken Lanning's profile of a child

pornographer.6 The profile includes the following elements: 1. Child

pornography collectors exhibit many of the same traits as pedophiles

or preferential child molesters; 2. Such individuals keep the pornographic materials for long periods of time in secure locations such as

the privacy of their homes; and 3. They meet and correspond with

others who share the same interest in child pornography. The defendant argues that this profile is inflammatory and has no connection to

the defendant.

The defendant does not present the court with support for his assertion that the profile was required to meet the standards of Daubert v.

Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), nor can this

court find any such requirement. It is clear that the use of profiles, in

conjunction with other evidence, to establish probable cause is allowable. See United States v. Aguiar, 825 F.2d 39, 40-41 (4th Cir. 1987)

(finding the use of a drug courier profile along with other evidence

to be sufficient to establish probable cause); Simmons v. Poe, supra,

47 F.3d at 1378 (discussing the use of a profile in establishing probable cause for a warrant). In the instant case, the profile was used in

the affidavit to suggest that the defendant meets the profile of a traf-

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6 The agent works and writes extensively in the field of investigation

of child pornography and preferential child molestation.

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ficker in child pornography and that, therefore, certain behaviors may

be expected, including the behavior of keeping and storing pornographic images. The profile compared child pornographers to

pedophiles, in terms of certain characteristics. It did not suggest that

the two were the same. To the extent that Mr. Sassani objects to the

alleged insinuation that he may be a pedophile, this court does not

read the affidavit so to allege. In any case, the warrant established sufficient probable cause even should we find that the affidavit incorrectly insinuated pedophilia. More than the profile, the defendant's

admission in his own Internet user profile that his hobbies included

GIFs7 and the fact that the defendant had transmitted such graphic

files over the Internet suggested in and of themselves that such files

might be found in the defendant's home and that a computer was

being used in the home to transmit and receive images electronically.

The defendant also alleges that the "Probable Cause" section of the

affidavit contained numerous misstatements of fact. The section identified BIG MIKE 8 as the code name used by Mr. Sassani. The section also identified BIG MIKE 8 as holding the phone number at Mr.

Sassani's home address and as residing at Mr. Sassani's home

address. The section also chronicled BIG MIKE 8's receipt and distribution of child pornography between August 1994 and March 1995.

The affidavit represents that BIG MIKE 8 transmitted child pornography on ten occasions. The defendant argues there were only four

occasions. The affidavit also represents that in March 1995, the defendant transmitted child pornography on four occasions and the defendant objects that he transmitted pornography only once in March

1995. The defendant further objects to the affidavit's representation

of the total number of transmitted images, the "depiction" of the

images (presumably, the agent's characterization of the subject matter

of the graphic files transmitted), the circumstances of transmission to

an undercover agent in September 1994, and the meaning of GIFs as

that term is used in the affidavit.

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7 A GIF is a graphics interchange format in which files may be stored

and transmitted. The GIF format, owned by Compuserve, is widely used

on the Internet for the transmission of all types of graphics files, not just

pornographic images.

 6
The Franks test requires a hearing on a motion to suppress only if

the alleged misinformation is reckless and if probable cause would

not exist without that information. The district court found, as do we,

that the affidavit, even without the offending facts, was sufficient

basis for probable cause. Whether there were four transmissions or

ten, whether there was an actual transmission at one point or a forwarded transmission that originated from the defendant, the fact

remains that there were transmissions of pornography by the defendant, giving rise to probable cause to search the defendant's home.

We find no error in the district court's determination that a Franks

hearing was not required.

The Search Warrant

The defendant also appeals the denial of the motion to suppress

itself. The defendant asserts first that the warrant was not supported

by fresh probable cause and, second, that the warrant failed to state

with sufficient particularity the places to be searched and things to be

seized.

The Fourth Amendment of the Constitution requires that probable

cause support a warrant. The information on which such probable

cause is based must be sufficiently fresh to warrant a belief that material evidence of criminal activity may yet be found in the area to be

searched. United States v. McCall, 740 F.2d 1331, 1335-1336 (4th

Cir. 1984). McCall states:

The fourth amendment bars search warrants issued on less

than probable cause, and there is no question that time is a

crucial element of probable cause. A valid search warrant

may issue only upon allegations of "facts so closely related

to the time of the issue of the warrant as to justify a finding

of probable cause at that time. Whether the proof meets this

test must be determined by the circumstances of each case."

Sgro v. United States, 287 U.S. 206, 210-11, 53 S.Ct. 138,

140-41, 77 L.Ed. 260 (1932). See also, e.g., United States

v. Watson, 423 U.S. 411, 449 n. 14, 96 S.Ct. 820, 840 n. 14,

46 L.Ed.2d 598 (1976) (Marshall, J., dissenting); United

States v. Freeman, 685 F.2d 942, 951-52 (5th Cir. 1982);

United States v. Beltempo, 675 F.2d 472, 476-79 (2d Cir.),

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cert. denied, 457 U.S. 1135, 102 S.Ct. 2963, 73 L.Ed.2d

1353 (1982); United States v. Button, 653 F.2d 319, 324-25

(8th Cir. 1981).

Id. McCall explains that a continuing pattern of behavior might give

probable cause where a single offense would not after a certain period

of time. There must exist probable cause that evidence of criminal

activity will exist at the time of the search. In the case before the

court, such probable cause existed. Numerous cases support a finding

that distribution of child pornography on several different occasions

may provide sufficient probable cause despite delay between a distribution and the date a search warrant is sought or executed. See, e.g.,

United States v. Bateman, 805 F.Supp. 1041, 1043 (D.N.H. 1992)

(upholding warrant with seven-month delay between distribution of

child pornography and execution of the warrant because of the

"unique nature of the creation, storage, keeping, alteration, potential

destruction of the child pornography material" and the "recognized

interest which the states and the federal government have in drying

up the distribution network for child pornography"); United States v.

Rakowski, 714 F.Supp. 1324, 1330 (D. Vt. 1987) (upholding warrant

based on information one to six months old because"those who collect child pornography keep the pornography, do not destroy their collections, and keep the pornography accessible"); United States v.

Lacy, 119 F.2d 742, 745 (9th Cir. 1997) (upholding search warrant

based on information ten months old because "the[agent] explained

that collectors and distributors of child pornography value their sexually explicit materials highly, `rarely if ever' dispose of such material,

and store it `for long periods' in a secure place, typically in their

homes"); United States v. Riccardelli, 998 F.2d 8, 12 (1st Cir. 1993)

(stating, "history teaches that [pornography] collectors prefer not to

dispose of their dross, typically retaining obscene materials for

years"); United States v. Harvey, 2 F.3d 1318, 1322 (3d Cir. 1993)

(basing, at least in part, a conclusion that a warrant was not based on

stale information on the fact that those who collect child pornography

tend to keep it); United States v. Rabe, 848 F.2d 994, 996 (9th Cir.

1988) (holding warrant not based on stale information despite twoyear delay between original seizures and warrant because more recent

letters indicated that pornographic material was still being kept by the

defendant); United States v. Lamb, 945 F.Supp. 441, 459 (N.D.N.Y.

1996) (holding warrant information not stale despite five-month lapse

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between last transmission over Internet because"FBI Special Agent

Lanning, an expert in this field, [stated] that collectors of child pornography rarely dispose of materials they obtain and`almost always

maintain and possess their material ... in the privacy and security of

their homes or some other secure location.'").

The defendant transmitted pornography on several separate occasions between 1994 and 1995. The last transmissions referred to in the

affidavit supporting the warrant occurred on March 11, 1995. On that

date, BIG MIKE 8 transmitted four files to the undercover agent. The

four separate image files were "HARD011C.GIF" (3:45 AM),

"HARD002C.GIF" (3:45 AM), "HARD003C.GIF" (3:45 AM), and

"HARDOO1C.GIF" (3:46 AM). Contrary to the defendant's assertions, these do not form part of one transmission, although all

occurred within minutes. These are four separate transmissions,

accomplished in a brief time. On September 19, 1995, six months

later approximately, the agents applied for a search warrant. These

transmissions, following the pattern of transmission in 1994 and

1995, provided sufficiently fresh probable cause for the warrant

issued in September 1995.

The defendant next argues that the search warrant described the

places to be searched and things to be seized with insufficient particularity to withstand the requirements of the Fourth Amendment. The

Fourth Amendment requires that a search warrant describe with particularity the place to be searched and the evidence to be seized.

United States v. Owens, 848 F.2d 462, 463 (4th Cir. 1988). The particularity requirement is designed to prevent "a general, exploratory

rummaging in a person's belongings." Coolidge v. New Hampshire,

403 U.S. 443, 467 (1971); Andresen v. Maryland , 427 U.S. 463, 480

(1976). A warrant meets the particularity requirement "if the description is such that the officer with a search warrant can, with reasonable

effort, ascertain and identify the place intended." Steele v. United

States, 267 U.S. 498, 503 (1925). "[T]he test for the necessary particularity is a pragmatic one: `The degree of specificity required when

describing the goods to be seized may necessarily vary according to

the circumstances and type of items involved....[T]here is a practical

margin of flexibility permitted by the constitutional requirement for

particularity in the description of items to be seized.'" United States

v. Torch, 609 F.2d 1088 (4th Cir. 1979), quoting United States v.

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Davis, 542 F.2d 743, 745 (8th Cir. 1976). Unlike with murder weapons or drugs, when an offense concerns the use of hard copy or electronic files and documents a court cannot be sure which files will be

relevant and the warrant may not be able to state as specifically what

should be searched and seized. Therefore, courts have required less

particularity in the warrant. United States v. Torch, 609 F.2d 1088,

1090 (4th Cir. 1979). Courts have acknowledged the need for the use

of generic terms in warrants seeking evidence of child pornography

and have upheld more generally-worded warrants so long as the warrant limits the discretion of the officers conducting the search. See

Torch, supra, 609 F.2d at 1090 (holding sufficient a warrant for "records, documents and writings related to the transportation, sale and

distribution in interstate commerce of lewd, lascivious and filthy

films"); United States v. Layne, 43 F.3d 127, 132-33 (5th Cir. 1995)

(upholding two warrants describing materials to be sought and seized

as follows: "assorted pornographic videotapes; assorted pornographic

magazines; assorted devices;" and, in the second warrant, "Child pornography; records of victims; drawings; pictures; computer disks,

sexual devices; videotapes; child abuse books; magazines; audiotapes;

and any other obscene or child pornographic material;" finding the

warrants sufficiently limited officers' discretion in searching); United

States v. Kimbrough, 69 F.3d 723, 727 (5th Cir. 1995) (finding sufficiently particular warrants' authorization for seizure of "`bills, correspondence, receipts, ledgers, Postal receipts and telephone records all

of which show orders and deliveries to or from any known foreign or

domestic distributer of child pornography'"); United States v. Hurt,

808 F.2d 707, 708 (9th Cir. 1987) (finding warrant authorizing search

for material depicting individuals under sixteen years of age engaged

in "sexually explicit conduct" to be sufficiently particular to limit officer's discretion); United States v. Jacobs, 513 F.2d 564, 567 (9th Cir.

1974) (finding sufficiently particular a warrant for"certain documents

pertaining to the interstate shipment of obscene materials").

In the case sub judice, the warrant listed among the items to be

seized any computers, tapes, cassettes, cartridges, streaming tape,

commercial software and hardware, computer disks, disk drives, monitors, printers, modems, tape drives, disk application programs, data

disks and graphic interchange format equipment which could be used

to depict, distribute, possess or receive child pornography. This listing

directed the FBI agents to search those items in the home with direct

 10
connection to the alleged crime of the defendant: distribution and

receipt of child pornography through the Internet by use of a computer. Courts have been clear that, in the case of child pornography,

a warrant allowing seizure of a computer and all its associated printing, storage, and viewing devices is constitutional. The computer,

applications, and various storage devices not only may contain evidence of distribution of child pornography, but are also the instrumentalities of the crime. See Davis v. Gracey, 111 F.3d 1472, 1480 (10th

Cir. 1997) (upholding seizure of computer and all files contained

therein because probable cause supported seizure of computer as an

instrumentality of the crime of distribution of obscene materials);

United States v. Kimbrough, supra, 69 F.3d at 727 (upholding warrant

allowing seizure of "hardware, computer disks, disk drives, monitors,

computer printers, modems, tape drives, disk application programs,

data disks, system disk operating systems, magnetic media-floppy

disks, CD ROMs, tape systems and hard drive, other computer related

operational equipment ... used to visually depict a minor engaging in

sexually explicit conduct"); United States v. Lacy, supra, 119 F.2d at

745 (allowing seizure of entire computer system, hardware and software, because "the affidavit in this case established probable cause to

believe Lacy's entire computer system was "likely to evidence criminal activity"). But see United States v. Kow , 58 F.3d 423, 426 (9th

Cir. 1995) (holding warrant to be overbroad when allowing seizure of

computers and computer files and storage devices because it failed to

limit discretion in any way such as defining the criminal conduct at

issue). The warrant in the case before us described the types of items

to be seized and the crime for which the items were sought. The

description contained in the search warrant limited the agents' discretion in the search by directing them to seize evidence of participation

in the distribution of child pornography over the Internet. We find no

error with the district court's determination that the warrant spelled

out with sufficient particularity the items to be seized.

In addition to the particularity requirement, the search actually conducted under a warrant must be limited to the areas and evidence

authorized by the warrant. Owens, supra, 848 F.2d at 463. Evidence

seized in violation of the Fourth Amendment requirement that the

search be limited to the confines of the warrant is subject to exclusion. Owens, supra, 848 F.2d at 463, citing Weeks v. United States,

232 U.S. 383, 398 (1914); Mapp v. Ohio, 367 U.S. 643, 655 (1961).

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In the instant case, the district court appropriately found that the FBI

agents remained within the limits of the warrant and that the search,

therefore, was not in violation of the Fourth Amendment.

The Sentence

The defendant also appeals his sentence, arguing that the district

court applied the incorrect legal standard in denying a downward

departure. At the sentencing hearing, Mr. Sassani claimed that he

should receive a downward departure because he suffered from various mental disorders, including Tourette's Syndrome, ObsessiveCompulsive Disorder, a major depressive disorder, and numerous

neuro-psychological deficits associated with Attention Deficit Disorder. These mental disorders, Mr. Sassani argued, caused him to possess child pornography. At the sentencing hearing, Judge Chasanow

declined to depart downward because she concluded that the defendant did not suffer from significantly reduced mental capacity such as

might force him to possess child pornography.

We review de novo the district court's interpretation of the legal

standard to be applied to an application for a downward departure.

United States v. Rybicki, 96 F.3d 754, 758 (4th Cir. 1996); United

States v. Han, 74 F.3d 537, 549 (4th Cir. 1996). Unless this court

finds that the district court erroneously believed that it did not have

the discretion to depart downward, this court will not review the district court's discretionary refusal to depart downward from the applicable guideline range. United States v. Brock , 108 F.3d 31, 33 (4th

Cir. 1997); United States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir.

1990); 18 U.S.C.A. § 3742(a), (b) (West 1985 & Supp. 1996).8

Section 5K2.13 of the Sentencing Guidelines states that a downward departure from the Guideline sentencing range may be appropri-

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8 Defendant suggests that the district court's determinations of fact,

such as the merit of defendant's claim of reduced mental capacity, should

be reviewed for clear error. While this would be true had the lower court

determined that it should depart, see Rybicki, supra, 96 F.3d at 758, this

court lacks jurisdiction to review a district court's denial of a departure

despite the factual evidence presented by the defendant. Brock, supra,

108 F.3d at 33.

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ate where "the defendant committed a non-violent offense while

suffering from significantly reduced mental capacity not resulting

from voluntary use of drugs or other intoxicants, a lower sentence

may be warranted to reflect the extent to which reduced mental capacity contributed to the commission of the offense." (U.S. Gov't Printing Office 1997). The courts have explored the impact of this policy

statement on sentencing guideline departures in a series of cases.

United States v. Glick, 946 F.2d 335 (4th Cir. 1990), explained that

a court should determine first whether the defendant suffered from

diminished mental capacity, and, second, whether such diminishment

was a cause of the offense. The court stated, "Diminished capacity

need not be the sole cause of the offense to justify a departure, but

should `comprise[ ] a contributing factor in the commission of the

offense.'" Id., quoting United States v. Ruklick, 919 F.2d 95, 97-98

(8th Cir. 1990). Unlike Glick, which focuses on the second prong of

the test it announced, United States v. Goossens , 84 F.3d 697, 701

(4th Cir. 1996), focuses on the first prong -- the determination of

diminished mental capacity itself. The court in Goossens requires that

the defendant's mental capacity not simply be partially diminished,

but that it be so diminished as to render the defendant incapable of

processing information or reasoning. Goossens, supra, 84 F.3d at 701.

United States v. Withers, 100 F.3d 1142 (4th Cir. 1996), revisits the

second Glick factor and more closely links the two factors. Withers

focuses on the causal relationship between the mental impairment and

the criminal behavior and suggests that the contributing factor analysis announced in Glick requires more than simply a contribution insofar as leaving defendant "open to suggestion." Id. at 1147-48. Withers

requires that the diminished mental capacity actively contribute to the

behavior, such as by rendering the defendant incapable of reasoning.

Id., citing Goossens, supra, 84 F.3d at 701. Thus, the Glick standard

for a downward departure under Section 5K2.13 p.s., as explicated in

Goossens and Withers, remains the law in this circuit.

Judge Chasanow stated that the legal standard for a downward

departure under Section 5K2.13 of the Sentencing Guidelines is

whether the defendant suffered from "significantly reduced mental

capacity [that] bears a causal relationship to the crime." We now find

that the district court applied the appropriate legal standard in this

case. Because we so find, we do not reach the issue of whether the

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district court properly found a downward departure unwarranted by

the facts of this case, as such review is beyond our authority.

Conclusion

For the reasons stated above, the order of the district court is

AFFIRMED.

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