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The Honorable Donald J. Stohr, United States District Judge for the Eastern

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 98-1201

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri

Michael J. Rickert, *

* [UNPUBLISHED]

Appellant. *

___________

 Submitted: March 30, 1999

 Filed: May 17, 1999

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Before McMILLIAN, LOKEN, and MURPHY, Circuit Judges.

___________

PER CURIAM.

Michael J. Rickert appeals from the final judgment entered in the District Court1

for the Eastern District of Missouri after he pleaded guilty to transporting in interstate

commerce by computer a visual depiction, the production of which involved the use of

a minor engaging in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(2),

and agreed to forfeit certain property used to commit the offense, pursuant to 18 U.S.C.

§ 2253(a). At sentencing appellant introduced testimony from his therapist and argued
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that a downward departure from the applicable sentencing guidelines range was

warranted because (1) his criminal history category overstated the seriousness of his

prior alcohol-related driving convictions; (2) there existed mitigating circumstances not

taken into consideration by the Guidelines, including his own sexual abuse and his

rehabilitative efforts; and (3) he committed the instant offense “while suffering from

significantly reduced mental capacity” as defined under U.S. S.G. § 5K2.13, p.s.

(1998). The court refused to depart downward and sentenced appellant to 20 months

imprisonment and three years supervised release. For reversal appellant argues the

district court erred in denying his motions for downward departure and abused its

discretion in admitting government Exhibits 2 and 3 at sentencing. For the reasons

discussed below, we affirm the judgment of the district court.

Reviewing the district court’s comments as a whole, we conclude that the court

was aware of its authority to depart on all three grounds argued by appellant and that

the court’s exercise of discretion not to depart under the circumstances is unreviewable

on appeal. See United States v. Saelee, 123 F.3d 1024, 1026 (8th Cir. 1997) (where

district court correctly understood its discretionary authority to depart rested upon

determination that circumstances of case make it exceptional and atypical, such that it

is outside of heartland of cases, its decision not to exercise such authority is

unreviewable); United States v. Field, 110 F.3d 587, 591 (8th Cir. 1997) (absent

unconstitutional motive, discretionary decision not to depart from Guidelines is

unreviewable on appeal); United States v. Knight, 96 F.3d 307, 311 (8th Cir. 1996)

(court’s decision not to depart downward from Guidelines range because it overrepresented seriousness of earlier convictions is not reviewable on appeal where court

understood it could depart), cert. denied, 520 U.S. 1180 (1997); United States v.

Jackson, 56 F.3d 959, 960 (8th Cir. 1995). 

To the extent appellant is arguing that the court incorrectly determined his

criminal history category by including a 1989 “Blood Alcohol Content” conviction, the

argument is without merit. See U.S.S.G. §§ 4A1.1(c), 4A1.2, comment (n.5) (1998)
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(convictions for driving while intoxicated and “similar offenses by whatever name they

are known” are counted toward defendant’s criminal history); United States v. Herron,

97 F.3d 234, 238 (8th Cir. 1996) (where defendant did not object below, this court

reviews only for plain error), cert. denied, 519 U.S. 1133 (1997).

Last, the court did not abuse its discretion in admitting Exhibits 2 and 3, because

both were relevant to the determination of appellant’s diminished-capacity departure

motion. See United States v. Harris, 982 F.2d 317, 318-19 (8th Cir. 1992)

(admissibility of evidence at sentencing is committed to sound discretion of district

court); cf. U.S. S.G. § 6A1.3, p.s. (1998) (“In resolving any dispute concerning a factor

important to the sentencing determination, the court may consider relevant information

without regard to its admissibility under the rules of evidence applicable at trial,

provided that the information has sufficient indicia of reliability to support its probable

accuracy.”). Moreover, contrary to appellant’s argument, there is no indication in the

record that the court utilized any criteria other than those set forth in the Guidelines in

determining his sentence. See U.S.S.G. § 1B1.4 (1998) (in determining sentence to

impose within Guidelines range, or whether departure from Guidelines is warranted,

court may consider any information concerning background, character, and conduct of

defendant unless otherwise prohibited by law).

Accordingly, the judgment is affirmed.
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A true copy.

Attest:

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