1 The Honorable Carol E. Jackson, United States District Judge for the Eastern District of Missouri. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 06-3224

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Jayme Ferris, * * [UNPUBLISHED] Appellant. *

___________ Submitted: September 25, 2007 Filed: October 10, 2007

___________ Before MURPHY, MELLOY, and SMITH, Circuit Judges.

___________ PER CURIAM. Jayme Ferris pleaded guilty, pursuant to a plea agreement, to possession with intent to distribute more than 500 grams of cocaine in violation of 21 U.S.C. § 841(a)(1). Under the terms of the plea agr eement and a cooperation agreement, Ferris was to provide cooperation to the government and, in return, the government agreed to file a motion for substantial assistan ce pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e). The government filed the motion, but the district court 1 declined to grant a downward departure and sentenced Ferris to sixty months' imprisonment. Ferris2 United States v. Adams, et al. , Case No. 4:04-cr-00517-CAS (filed Sept. 16, 2004).
-2- appeals his sentence based on the district court's denial of the motion for downward departure. We hold that the district c ourt's decision not to depart downward is unreviewable because the court was aw are of its authority to depart.

I. Background On February 3, 2006, Ferris pleaded guilty in an unrelated case 2to a charge of conspiracy to distribute and possess with the intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Under the terms of the plea agreement and a cooperation agr eement, Ferris was to provide cooperation to the government, and if Ferris provide d complete cooperation, the government agreed to file a motion for substantial assistance pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C § 3553(e). If, however, Ferris committe d a crime after the agreement, the agreement would become null and void. Fo llowing his plea in th at case, Ferris was allowed to remain on bond pending sentencing.
On March 7, 2006, while out on bond, Ferris committed the instant offense, possession with intent to distribute more th an 500 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1). Upon his arrest, Ferris agai n agreed to cooperatein return for the government's filing of a motion for substantial assistance pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e). Ferris assi sted the government by identifying his source of supply, who was subsequently indicted.
On May 2, 2006, Ferris was sentenced in United States v. Adams, et al. The government had filed a motion for downward departure, and the district court imposed a sentence of 120 months—the statutory mandatory minimum sentence—which represented a departure of 68 months from the low end of Ferris's Guideline range.3 The Honorable Charles A. Shaw, United St ates District Judge for the Eastern District of Missouri.
-3- The district court 3 in that case was aware of the assistance Ferris had given to police since his second arrest.
On May 22, 2006, Ferris entered a plea of guilty in the instant case. During the plea colloquy the district court explained to Ferris that if the government filed a substantial assistance motion for downward departure it would be up to the court to grant or deny the motion. On August 15, 2006, the government filed a motion for substantial assistance, and three days later Ferris was sentenced to 60 months' imprisonment to run consecutively to Ferris's 120-month sentence imposed in United States v. Adams

. Before denying the motion for downward departure, the district court discussed the motion with counsel in a sidebar conf erence explaining thatbecause Ferris had received the benefit of his assistance in United States v. Adams the district court did not believe a downward departure in the instant case was warranted.

II. Discussion Ferris claims that the district court erred in sentencing him to 60 months' imprisonment. He argues that his sentence is unreasonable because the district court erred by denying his motion for downward de parture. However, the discretionary denial of a motion for downward departure is unreviewable unless the district court failed to recognize its authority to depart. United States v. Carter , 481 F.3d 601, 607 (8th Cir. 2007). Ferris asserts that the di strict court failed to recognize it had the authority to depart, but nothing in the record supports that assertion. During both the plea colloquy and the sidebar conference duri ng the sentencing hearing, the district court displayed awareness of its disc retion to grant the downward departure.-4- III. Conclusion Accordingly, we hold that the district court's discretionary denial of the motion for downward departure is unreviewable.

______________________________