1RECOMMENDED FOR FULL-TEXT PUBLICATIONPursuant to Sixth Circuit Rule 206ELECTRONIC CITATION: 2000 FED App. 0103P (6th Cir.)File Name: 00a0103p.06UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT_________________UNITEDSTATES OFAMERICA,Plaintiff-Appellee,v.BRETTL.HENDERSON(98-4087),DAVIDNELMS(98-4369),Defendants-Appellants.;>1Nos. 98-4087/4369Appeal from the United States District Courtfor the Southern District of Ohio at Columbus.No. 97-00098—George C. Smith, District Judge.Submitted: March 8, 2000Decided and Filed: March 23, 2000Before: WELLFORD, SILER, and GILMAN, CircuitJudges._________________COUNSELON BRIEF:Brian E. Goldberg, DANA & PARISER,Columbus, Ohio, William K. Fulmer, II, Erlanger, Kentucky,2United States v. Henderson, et al.Nos. 98-4087/4369for Appellants. Robyn R. Jones, ASSISTANT UNITEDSTATES ATTORNEY, Columbus, Ohio, for Appellee._________________OPINION_________________RONALD LEE GILMAN, Circuit Judge. Brett Hendersonand David Nelms pled guilty to conspiring to import cocainein violation of 21 U.S.C. § 963. Both are appealing theirsentences, claiming that their criminal history categoriesoverstate the seriousness of their past conduct. Because ofthis, they argue that the district court erred when it deniedtheir motions for a downward departure from the UnitedStates Sentencing Guidelines. Henderson also argues that thedistrict court erred when it assessed him with three criminalhistory points, pursuant to U.S.S.G. § 4A1.1(a), for serving asentence in excess of one year and one month for a pastrobbery conviction. The district court rejected Henderson’sand Nelms’s arguments and found that their criminal historycategories adequately reflected their numerous pastconvictions. For the reasons set forth below, weAFFIRMthe judgment of the district court.I. BACKGROUNDIn the summer of 1996, two brothers, Mark and GarySeawell, developed an organization to import cocaine fromBelize and Mexico into Columbus, Ohio for distribution.From the summer of 1996 through the summer of 1997, theSeawells hired other individuals, including Brett Henderson,to recruit couriers for them. A courier would travel toChetamul, Mexico and receive a pair of tennis shoes with ahalf kilogram of cocaine concealed in the sole of each shoe.Upon receiving the shoes, a courier would place them on hisfeet and wear them back to Columbus. Henderson and theother recruiters would pick up the cocaine from theirrespective couriers and deliver it to Gary Seawell fordistribution.10United States v. Henderson, et al.Nos. 98-4087/4369category that Henderson received with nine points. Thus,even if Henderson’s argument had merit, the applicableguideline sentencing range would have remained the same.III. CONCLUSIONFor all of the reasons set forth above, weAFFIRMthejudgment of the district court.Nos. 98-4087/4369United States v. Henderson, et al.3Nelms was involved in a cocaine shipment for the Seawellsin August of 1997. Instead of having couriers bring the drugsback in their tennis shoes, this particular shipment was sent bymail from Belize to Columbus. The United States CustomsService, however, intercepted this shipment and made acontrolled delivery to one of Nelms’s co-conspirators. GarySeawell then instructed this co-conspirator to give the cocaineto another co-conspirator named Richard Meighan. WhenMeighan arrived to pick up the package of cocaine, Nelmswas with him. Upon being approached by the police, Nelmsfled. Nelms was ultimately arrested. The box in which thecocaine had been shipped was recovered from the locationwhere Nelms had attempted to hide it during the chase.Subsequent investigation further revealed that Nelms haddistributed cocaine for the Seawells in the past and wasexpecting to receive a portion of the cocaine delivered in theAugust shipment.Shortly thereafter, Henderson and Nelms were indicted onnumerous drug charges. On December 24, 1997, pursuant toseparate plea agreements, they each pled guilty to conspiringto import cocaine in violation of 21 U.S.C. § 963. Prior tosentencing, the government filed motions, pursuant toU.S.S.G. 5K1.1, seeking downward departures for bothHenderson and Nelms based on their assistance in theinvestigation of their co-conspirators. Because Hendersonhad provided more assistance than Nelms, the governmentrecommended that the district court depart four offense levelsfor Henderson and three offense levels for Nelms. Thedistrict court granted the government’s motion and departedaccordingly.In determining Henderson’s sentence, the district courtpointed out that he had twelve convictions as an adult. All ofthem were not included in Henderson’s criminal historycomputation due to the length of time that had passed sincesome of them had occurred. Those that were utilized forpurposes of the computation included a conviction foroperating a motor vehicle while under the influence (OMVI)in 1987, a robbery conviction in 1990, OMVI convictions in4United States v. Henderson, et al.Nos. 98-4087/43691993 and 1995, a conviction for driving under a suspendedlicense in 1995, disorderly conduct convictions in 1996 and1997, and a negligent assault conviction in 1997. Hendersonreceived a total of nine criminal history points that resulted ina criminal history category of IV for purposes of sentencing.These nine points were derived by assessing Henderson threecriminal history points for the 1990 robbery conviction,seeU.S.S.G. § 4Al.1(a), four points for the other numerousconvictions that he had,seeU.S.S.G. § 4A1.1(c), and twopoints for committing the instant offense while on probation,seeU.S.S.G. § 4A1.1(d).Henderson made several objections to his criminal historycalculation. One of his primary contentions was that hiscriminal history category overstates the seriousness of his pastconduct. In other words, because his past criminal historyconsists of a number of “minor” violations, Henderson arguedthat his criminal history category exaggerates the significanceof his past conduct. His other main argument was that heshould not receive the three point assessment for his 1990robbery conviction because of his unsupported contention thathe was supposed to get “shock probation” after he had servedonly six months in prison. Shock probation is a term of artfor early release that may be granted in the discretion of theOhio trial court.See Ohio v. Bistarkey, No. 90-CR-290, 1994WL 456473, *2 (Ohio Ct. App. Aug. 19, 1994); O.R.C. §2947.061. Because defendants are able to get out of prisonmuch sooner than under normal conditions, many statedefendants file motions for shock probation in Ohio.The district court, however, concluded that Henderson’scriminal history category was not overstated and pointed outthat the plain language of § 4A1.1 mandated that the courtadd three points for the robbery conviction. It then departeddownward four offense levels because of Henderson’sassistance to the government, which was a 70-monthreduction, and sentenced Henderson to 140 months ofimprisonment, followed by a 5-year period of supervisedrelease, and a $100 special assessment. Henderson timelyfiled a notice of appeal.Nos. 98-4087/4369United States v. Henderson, et al.9Now, according to 4A1.1(a), three points are added foreach prior sentence of imprisonment exceeding one yearand one month. On May 30th of 1990, the defendant wassentenced to 3-15 years of imprisonment for robbery. OnNovember 27th of 1991, the defendant received shockprobation. This term of imprisonment clearly fulfills thecriteria for a three-point enhancement under 4A1.1(a).Therefore, the Court finds that the defendant is deservingof the three criminal history points pursuant to thatsection.As pointed out by the district court, three points are added foreach prior sentence of imprisonment exceeding one year andone month.SeeU.S.S.G. § 4A1.1(a). Henderson admits thathe served a sentence of one year and approximately sixmonths for his 1990 robbery conviction. Consequently,§ 4A1.1(a) is clearly applicable.Henderson, however, attempts to avoid the application of§ 4A1.1(a) by arguing that his sentence on the robberyconviction would have been less than one year and one monthhad his defense lawyer in 1990 filed for “shock probation” ina more timely fashion. This argument, however, is unavailingbecause this circuit has held that “the federal sentencingforum [is] not the proper forum for a constitutional challengeto a prior conviction used to enhance a sentence.”Turner v.United States, 183 F.3d 474 (6th Cir. 1999) (citingCustis v.United States, 511 U.S. 485 (1994)).Finally, even if the district court had accepted Henderson’sargument and found that he should have served only sixmonths for his robbery conviction instead of a year and sixmonths, such a finding would not have changed his overallcriminal history category. Under § 4A1.1(b), two pointswould have been assessed for the 1990 robbery convictionbecause Henderson’s sentence would have exceeded sixtydays. If two points are used instead of three, thenHenderson’s total criminal history points would have beeneight instead of nine. Eight criminal history points, however,still result in a criminal history category of IV, the same8United States v. Henderson, et al.Nos. 98-4087/4369convictions. The Court finds that these convictions donot produce a criminal history category whichsignificantly over represents the defendant’s criminalhistory and are an accurate prediction of the defendant’slikelihood to commit further crimes. So, therefore, nodownward departure is warranted.In addressing a similar argument from Nelms, the districtcourt further acknowledged its authority to depart downward:[I]f reliable information indicates that the defendant’scriminal history category does not adequately reflect theseriousness of the defendant’s past criminal conduct orthe likelihood that the defendant will commit othercrimes, the Court may consider imposing a sentence anddeparting from the otherwise applicable guideline range.The example might be two misdemeanors close to a 10-year prior instant offense. . . . The Court finds that adeparture in this case is unwarranted and due to theconstant violations and convictions that the defendant hashad, that the departure is not applicable under 4A1.3 orany other paragraph of that report.Because the district court was clearly aware of its discretionto depart downward in both Henderson’s and Nelms’s cases,its informed decision not to depart is unreviewable.SeeUnited States v. Brown, 66 F.3d 124, 128 (6th Cir. 1995)(“[A] lower court’s informed decision not to depart from avalid guideline range is not reviewable.”).C. The district court properly assessed three criminalhistory points for the sentence that Hendersonreceived relating to his robbery convictionHenderson also argues that he should not have beenassessed three criminal history points for serving over oneyear and one month in prison for his robbery conviction.SeeU.S.S.G. § 4A1.1(a). In addressing that argument, the districtcourt concluded as follows:Nos. 98-4087/4369United States v. Henderson, et al.5With respect to Nelms’s sentence, his record includesjuvenile convictions for receiving stolen property andattempted drug abuse, neither of which were used incalculating his criminal history. As an adult, Nelms has aconviction for aggravated trafficking in drugs in 1991, fourdrug convictions between the span of 1992 to 1993, and adrug abuse conviction in 1995. Nelms’s six drug convictionsresulted in a criminal history score of thirteen under theguidelines. He is also a “career offender” because, as anadult, he had been convicted of two felony drug crimes priorto his felony plea on the cocaine importation charge.SeeU.S.S.G. 4B1.1. A total criminal history score of thirteencombined with his career offender status resulted in a criminalhistory category of VI.At Nelms’s sentencing hearing, he argued that the offensesthat made him a career offender were committed when he waseighteen and nineteen years old and involved only a smallamount of drugs. Thus, according to Nelms, his “prior history[did] not accurately reflect the gravity of the career offenderstatus.” The district court, however, found that Nelms’scriminal history category adequately reflected his pastconduct, especially considering the amount of violations thathe had committed. On the other hand, it did depart downwardthree levels on account of Nelms’s assistance to thegovernment. This departure resulted in a thirteen monthreduction from the low end of Nelms’s original guidelinerange and a sixty month reduction from the maximumpossible sentence that he could have received. After thedeparture, Nelms’s offense level was twenty-eight and hiscriminal history category was VI, which resulted in asentencing range of 140 to 175 months. Nelms was sentencedto 175 months of imprisonment, followed by a 4-year periodof supervised release, and a $100 special assessment.Because Nelms ran from the arresting officers, attempted toconceal evidence, and had a lengthy criminal history, he wassentenced at the high end of the guideline range. Nelms fileda timely notice of appeal.6United States v. Henderson, et al.Nos. 98-4087/4369II. ANALYSISA. Standard of reviewBoth Henderson and Nelms argue that the district courtabused its discretion when it denied their motions for adownward departure. The government counters by arguingthat the district court did not abuse its discretion because itwas aware that it had the authority to depart downward. Allof the parties citeKoon v.United States, 518 U.S. 81 (1996),for the proposition that we review a district court’s decisionnot to depart for an abuse of discretion.Koon, however, dealtwith a district court’s affirmative decisionto departdownward, which is inapplicable to a district court’s decisionnotto depart from the sentencing guidelines.SeeUnitedStates v. Brown, 98 F.3d 690 (2d Cir. 1996).InBrown, the Second Circuit addressedKoon’sapplicability to a decision not to depart from the sentencingguidelines and held the following:[I]t is well established in this Circuit that a court’sdecision not to depart from the Guidelines is notnormally appealable. On appeal, however, Brown urgesthat the Supreme Court’s recent decision inKoon. . .requires that we apply an “abuse of discretion standard”to a judge’s decision not to depart from a prescribedGuidelines range. TheKooncase, however, concernedthe appropriate standard for reviewing a judge’s decisionto depart. BecauseKoondid not involve a judge’sdecision not to depart, it does not affect the law of thisCircuit barring appeal where a district court decides notto depart.Id. at 692 (citations and parentheticals omitted).We agree with the Second Circuit’s reasoning inBrownandfind thatKoondoes not alter this court’s precedent thatgenerally precludes appeals from decisions not to depart fromthe guideline range.See United States v. Rudolph, 190 F.3d720, 722 (6th Cir. 1999) (holding, in a post-Kooncase, thatNos. 98-4087/4369United States v. Henderson, et al.7“[u]nless a district court mistakenly believes that it lacks thelegal authority to depart below the guidelines range, this courtmay not review a district court’s decision not to depart.”);United States v. Pruitt, 156 F.3d 638, 650 (6th Cir. 1998) (“Adistrict court’s discretionary refusal to depart downward isgenerally not appealable, unless the district court mistakenlybelieved it did not have legal authority to depart downward.”).Consequently, the primary issue in the case before us iswhether the district court believed that it had the legalauthority to depart downward if it were to find thatHenderson’s and Nelms’s criminal history categoriesoverstated the seriousness of their past conduct.Henderson also argues that the district court erred when itassessed him with three criminal history points for his 1990robbery conviction. With respect to sentencingdeterminations, we review a district court’s factual findingsunder the “clearly erroneous” standard, and review its legalconclusions under the de novo standard.See United States v.Waldon, __ F.3d __, 2000 WL 178107, at * 9 (6th Cir. Feb.17, 2000).B. The district court made an informed decision not todepart downward in both Henderson’s and Nelms’scases, making those decisions unreviewableAt Henderson’s sentencing hearing, the district courtcommented as follows regarding Henderson’s argument thathis criminal history category was overstated:Regarding the criminal history being overstated andasking for a downward departure under 4A1.3, as youhave argued here and in your paperwork, in that itconsists of minor violations. Section 4A1.3 states that ifthe defendant’s criminal history category significantlyover represents the seriousness of the defendant’scriminal history or the likelihood that the defendant willcommit future crimes, a downward departure may beappropriate. In the instant case, the defendant between1986 and 1997 had 12 convictions, some of which wereof a violent nature. They also included three OMVI