1The Hon. D. Brook Bartlett, late the Chief Judge, United States District Court

for the Western District of Missouri.

 United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 99-1378WM

_____________

United States of America, *

*

Appellee, *

* On Appeal from the United

v. * States District Court

* for the Western District of

* Missouri.

Samuel Sterling Shepard, *

*

Appellant. *

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Submitted: January 11, 2000

Filed: March 24, 2000

___________

Before RICHARD S. ARNOLD, FAGG, and HANSEN, Circuit Judges.

___________

RICHARD S. ARNOLD, Circuit Judge.

Samuel Sterling Shepard was convicted on his plea of guilty to being a felon in

possession of a firearm. The District Court1 sentenced him to 51 months (four years

and three months) in prison, and he appeals. Mr. Shepard urges a variety of arguments

in support of a reduction of sentence, but we affirm, holding that the District Court

made no errors of law, and that its findings of fact were not clearly erroneous.
2The plea agreement that Mr. Shepard signed contained a waiver of his right to

appeal his sentence, so long as the sentence was within the Guidelines range indicated

in the agreement. That range was 46 to 57 months. The sentence, accordingly, was

within the range, and the government contends that Mr. Shepard has therefore waived

his right to appeal. At the sentencing hearing, however, the District Court told

Mr. Shepard that he could appeal his sentence if he thought there was anything illegal

about it. In these circumstances, we assume without deciding that the plea agreement

does not bar the appeal. We choose to decide the case on the merits, instead.

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We believe that a brief summary of the contentions on appeal, and of our reasons

for rejecting them, will be sufficient.2

1. The District Court found as a fact, after a two-day sentencing hearing, that

Mr. Shepard had possessed five firearms. Possession of five to seven guns results,

under the relevant Guideline, in a two-level increase in the offense level. Mr. Shepard

contends that the evidence supported the finding only as to four of the guns, and that,

therefore, he should have received only a one-level increase. The gun in question is

referred to by the parties as "the Franchi shotgun." There was evidence that

Mr. Shepard had told a bail bondsman that he owned this gun. The District Court

evidently believed this evidence, and its finding is not clearly erroneous.

2. Mr. Shepard's offense level was also increased for willful obstruction of

justice. The government contended that he had attempted to persuade his former

girlfriend and his estranged wife not to speak to investigating agents. Mr. Shepard

argues, to the contrary, that his only intention was to arrange to see his children, and

to make sure that his former girlfriend, who he says he believed was herself under

investigation, would not talk to an agent before consulting counsel. These points

depend on the interpretation of notes made of telephone conversations with

Mr. Shepard. We hold that the interpretation placed on these notes by the District

Court was reasonable. Perhaps the benign interpretation urged by Mr. Shepard would
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also have been reasonable, but the finding made on these issues by the District Court

is not clearly erroneous.

3. The defendant asked the Court to depart downward from the Guidelines

range on the basis of two factors which, he contended, were present to an extraordinary

degree. Criminal History Category III, he argues, greatly overstated the seriousness

of his criminal record. Moreover, he urges that his commission of the crime was

caused or influenced by mental illness. The District Court refused to depart downward

on the basis of these factors, considered either singly or in combination. We have no

jurisdiction to review this decision unless the Court was unaware of its authority to

depart downward and declined to do so for that reason. We are unable to agree that

the experienced district judge was unaware of his authority. Instead, in our view, he

simply declined to exercise his discretion in Mr. Shepard's favor for the reasons

suggested. We therefore have no jurisdiction to review this point. We observe, in

addition, that we see nothing unreasonable, or amounting to abuse of discretion, in what

the District Court did.

4. At the sentencing hearing the District Court mentioned that Mr. Shepard's

mother was afraid of him. This statement, which was based on a passage in the

Presentence Report, is contested by appellant. He says, in particular, that he was not

given a fair chance to contest this issue as a matter of fact. We do not believe that this

particular comment by the Court indicates that the Court would have imposed a more

lenient sentence had it not been of the view that Mr. Shepard's family was afraid of

him. The sentence imposed was slightly below the midpoint of the Guidelines range.

In addition, the appellant's reply brief takes the position that resentencing would not be

appropriate on this basis alone, and simply asks for an opportunity to contest what he

claims to be erroneous factual assertions in the Presentence Report if the case should

be remanded for resentencing for other reasons. It is not being remanded for

resentencing, so we need not pursue this issue.
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We wish to thank Mr. Shepard's appointed counsel in this Court for a thorough

and professional job in support of his client's appeal.

The judgment is affirmed.

A true copy.

Attest:

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