United States Court of Appeals

For the Eighth Circuit

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No. 15-3654

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Brian Christopher Young

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Western District of Missouri - Jefferson City

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 Submitted: April 11, 2016

 Filed: June 16, 2016

[Unpublished] 

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Before RILEY, Chief Judge, WOLLMAN and MURPHY, Circuit Judges.

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PER CURIAM.

Brian Christopher Young appeals the 77-month sentence imposed by the

district court after he pleaded guilty to one count of conspiracy to distribute and

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The Honorable Brian C. Wimes, United States District Judge for the Western 1

District of Missouri. 
possess with intent to distribute 100 kilograms or more of marijuana in violation of

21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. At sentencing, Young argued for a

downward departure under United StatesSentencingGuidelines(U.S.S.G.) § 5K2.23,

which would have credited against his federal sentence the 24-month discharged

sentence he previously served in state custody for related conduct. The district court

declined to grant the requested departure, and Young argues that the court abused its

discretion and imposed a substantively unreasonable sentence. We affirm.

Young first argues that the district court failed to consider his request for credit

under § 5K2.23. This assertion is belied by the record. Young’s attorney filed a

sentencing memorandum outlining his argument for a departure under § 5K2.23, and

the district court stated that it had considered that argument. Young’s attorney also

discussed the motion at length during the sentencing hearing. The district court

acknowledged the request, stating that it understood “[c]ounsel’s argument as to

[Young’s] conduct and the state,” but the court concluded that a 77-month sentence

was “sufficient but not greater than necessary.” At the end of the sentencing hearing,

Young’s counsel revisited the issue, confirming for the record that the district court

had denied Young’s request for credit for time served in state custody. The district

court acknowledged that it had “rejected the argument.” In light of this record, we

conclude that the court gave due consideration to Young’s argument for a § 5K2.23

downward departure. 

Young next contends that he was entitled to credit under § 5K2.23 for his

discharged term in state prison because he would have qualified for credit under

U.S.S.G. § 5G1.3 had the term been undischarged. Thus, he argues, the district court

abused its discretion by denying his motion for a departure. “We have repeatedly

held that when a district court is aware of its discretion to depart downward [under

the Guidelines] and elects not to exercise this discretion, then that decision is

unreviewable.” United States v. Watson, 480 F.3d 1175, 1177 (8th Cir. 2007); see

also United States v. Wanna, 744 F.3d 584, 589 (8th Cir.), cert. denied, 135 S. Ct. 125

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(2014). The district court recognized its authority to depart under § 5K2.23 in this

case but declined to exercise that authority. That decision is unreviewable. See

United States v. Woods, 596 F.3d 445, 449 (8th Cir. 2010) (“[W]e have no authority

to review the district court’s denial of . . . a downward departure [when a defendant]

does not argue that the court had an unconstitutional motive in denying his request

and [when] the court recognized that it had the authority to depart downward.”

(quoting United States v. Anderson, 570 F.3d 1025, 1034 (8th Cir. 2009))). 

Moreover, the district court did not impose a substantively unreasonable

sentence. See United States v. Coleman, 556 F.3d 851, 853 (8th Cir. 2009) (noting

that all sentences are reviewed “under a deferential abuse-of-discretion standard”)

(quoting Gall v. United States, 552 U.S. 38, 41 (2007)). Young’s 77-month sentence

was at the bottomofthe properly calculated Guidelines range, and the court explained

in detail why the § 3553(a) sentencing factors weighed in favor of that sentence. 

After discussing the nature and circumstances of the crime; Young’s criminal history,

including the fact that he committed his federal offense while serving a term of

probation from his state conviction; the need for general and specific deterrence; and

the need to promote respect for the law, the court ultimately determined that a 77-

month sentence was appropriate. The court did not abuse its discretion in making that

determination based on these factors. 

The judgment is affirmed.

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