                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No.  02-1604
                                   ___________

United States of America,             *
                                      *
           Plaintiff - Appellee,      *
                                      * Appeal from the United States
     v.                               * District Court for the Eastern
                                      * District of Missouri. 
Kerron Rhone,                         *
                                      *
           Defendant - Appellant.      *
                                 ___________

                             Submitted: September 13, 2002

                                  Filed: November 25, 2002
                                   ___________

Before LOKEN, RILEY, and SMITH, Circuit Judges. 
                            ___________

SMITH, Circuit Judge. 

      Kerron Rhone seeks reversal of the District Court's denial of his request for a
downward departure from the Sentencing Guidelines.  Rhone pled guilty to
possession of a firearm in violation of 18 U.S.C. ' 922(g).  Prior to sentencing, Rhone
urged the District Court1 to grant a downward departure from the Sentencing
Guidelines pursuant to U.S.S.G. ' 5K2.0 based upon equitable considerations. 
Specifically, he maintained that he should be credited for three years incarceration

      1
       The Honorable Jean C. Hamilton, United States District Judge for the Eastern
District of Missouri. 
previously served for an unrelated prior conviction, which had been subsequently
vacated.  Rhone contends that the Sentencing Commission, in promulgating the
Guidelines, did not consider circumstances of a defendant serving time on a vacated
sentence; thus, his case should fall outside the Aheartland@ of the Guidelines.  The
District Court acknowledged Rhone=s equitable argument, but refused to depart
downward.  The District Court sentenced him to fifty-seven months' imprisonment,
the bottom of the Guidelines range.  We dismiss the appeal for lack of jurisdiction. 

       A sentencing court has discretion to depart from the applicable Guidelines
range when a case involves an Aaggravating or mitigating circumstance of a kind, or
to a degree, not adequately taken into consideration by the Sentencing Commission
in formulating the guidelines that should result in a sentence different from that
described.@ 18 U.S.C. ' 3553(b); see also Koon v. United States, 518 U.S. 81 (1996)
(stating that the District Court must decide whether the factor is sufficient to take the
case out of the Guideline=s heartland).  In applying its discretion, if the District Court
determines that the Sentencing Commission adequately considered a defendant=s
circumstance, then no downward departure is warranted. 

       As a preliminary matter, we must decide whether the District Court recognized
its authority to downwardly depart from the Guidelines.  This matter is properly
before us only if Rhone establishes that the District Court erroneously determined that
it did not have the authority to depart under Section 5K2.0.  Our precedent on this
point is clear.  If the District Court correctly Aunderstood its authority to depart
downward, but declined to do so in the circumstances presented, its decision not to
exercise its authority is unreviewable@ on appeal, absent an unconstitutional motive. 
United States v. Saelee, 123 F.3d 1024, 1025-26 (8th Cir.  1997). 

      In an attempt to avoid a readily foreseeable procedural bar to appellate review,
Rhone employed an argument tactic that we find unappealing and unavailing.  At his
sentencing hearing, Rhone requested that the District Court either grant an equitable

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downward departure or deny its ability to do so.  The following excerpts from the
sentencing transcript reflect the nature and substance of Rhone=s argument at
sentencing:

Rhone=s counsel:

             [I]f you are uncertain as to whether or not you can do this
      and decide not to do it, I would ask you not - not to say, AI think
      I have the power to do this and I chose not to.@ At least let me get
      to the Court of Appeals on the issue because I B it=s not
      appealable if you recognize you have the authority to depart and
      chose not to.  So first and foremost, we would like you to depart
      downward.  If you chose not do that, we would ask that we have
      an opportunity to present this to the Court of Appeals. 

The District Court:

              [Your position had] certainly an attractive argument here,
      but I think [the Assistant U.S. Attorney] hit on the issue that does
      trouble B is that we=re not dealing with the same conviction. 
      We=re dealing with this, you know, credit on future
      transgressions.  And the problem I have here is that Mr. Rhone
      seems to have difficulties with these firearms convictions, and I=m
      not sure it’s very neat symmetry even though B if you want to
      make it into an equity argument, well you can articulate that.  So,
      I=m going to deny any downward departure on this.  And I will
      sentence within the Guideline range that=s been determined with
      respect to the calculation for this particular offense, and if there
      should be read into the Guidelines some sort of equitable
      argument, I think that=s going to have to either come from
      Congress or at least, in my case, the Eighth Circuit. 

      Rhone maintains that the District Court declined to decide whether or not it had
authority to depart from the sentencing guidelines.  We disagree.  The record


                                         -3-
adequately reflects that the District Court knew of its discretion and ability to apply
it to the facts and circumstances of this case.  For example, the District Court
acknowledged: 1) the attractiveness of Rhone=s equitable argument; 2) the serial
nature of Rhone=s firearm convictions; and 3) public policy concerns relating to serial
criminals being allowed to, in essence, Abank@ time for future transgressions.  Also
noteworthy is the omission of any statement from the District Court that indicates its
inability to downwardly depart, despite Rhone=s blunt solicitation for just such a
declaration. 

      For the foregoing reasons, we conclude that the District Court understood its
discretion, but chose not to use it in a manner consistent with Rhone=s preferences. 
Accordingly, this appeal is dismissed for lack of jurisdiction. 

       A true copy. 

             Attest:

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




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