                                 United States Court of Appeals,

                                         Eleventh Circuit.

                                           No. 97-8124

                                    Non-Argument Calendar.

                       UNITED STATES of America, Plaintiff-Appellee,

                                                v.

                      Dumanika Shamon SEARCY, Defendant-Appellant.

                                          Jan. 14, 1998.

Appeal from the United States District Court for the Northern District of Georgia. (No. 1:96-CR-
285-1-GET), G. Ernest Tidwell, Judge.

Before EDMONDSON, BLACK and HULL, Circuit Judges.

       PER CURIAM:

       Dumanika Searcy appeals the district court's decision to deny his motion to depart

downward, under U.S.S.G. § 5K2.0, on the ground that he might have received a lower sentence in

state court for the same crime. Applying such a departure would undermine the nationwide

uniformity that Congress sought to ensure when it promulgated the sentencing guidelines; so, we

adopt the same standard as four other circuits deciding against this kind of departure. Because the

district court correctly refused to depart from Searcy's applicable guidelines range, we affirm.

       After DeKalb County police arrested Searcy on outstanding warrants, and discovered 59.9

grams of crack cocaine on him, Searcy, in federal court, pled guilty to possession with intent to

distribute cocaine (Base). Before sentencing, Searcy submitted a motion for downward departure,

arguing that he "should not have been singled out from the great majority of cases for prosecution

and sentence under Federal Law." Therefore, Searcy argued that the district court should depart

downward to about the sentence he would have received under Georgia law.
       On appeal, Searcy argues that there was no federal task force, no fellow defendants involved

in federal prosecution, and no federal money involved in this case and, therefore, that this case

should only have been prosecuted at the state level. Searcy contends that, because this situation was

not considered by the sentencing guidelines, there existed in his case a circumstance "not adequately

taken into consideration by ... the guidelines," U.S.S.G. § 5K2.0.

       According to Searcy, the district court judge should have considered a downward departure.

In so doing, the district judge should have considered that this case fell under the exception that,

when a case is different, to an unusual degree, from the "heartland" of cases covered by the

guidelines, the sentencing court should depart from the guidelines. Searcy argues that the court

abused its discretion in finding that it was precluded as a matter of law from considering a

downward departure on the grounds argued by Searcy. For background, see Koon v. United States,

518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996).

       The district court decided that it did not possess the legal authority to depart downward in

this case. Under United States v. Williams, 948 F.2d 706, 708 (11th Cir.1991), we review the district

court's conclusion of law.

        In Koon, the Supreme Court set out questions to consider when deciding whether to depart

from the guidelines established by the Sentencing Commission. These questions are the ones

mentioned: (1) what features of the case make it outside the guidelines' "heartland" and make it

special or unusual? (2) did the Commission forbid departure based on those features? (3) if not, did

the Commission encourage departure based on those features? and (4) if not, did the Commission

discourage departure based on those features? 518 U.S. at ----, 116 S.Ct. at 2045.

         Because the guidelines give no specific comments on federal and state sentencing

differences, we must decide, under Koon 's first factor, whether this case falls outside the guidelines'
"heartland." While this issue is one of first impression for us, other circuits already have ruled that

a prosecutor's choice of federal rather than state jurisdiction is not a permissible circumstance to

consider for departing downward. See United States v. Haynes, 985 F.2d 65, 69 (2d Cir.1993);

United States v. Deitz, 991 F.2d 443, 447 (8th Cir.1993) (theoretical sentence defendant might have

received in state court no basis for departure); United States v. Sitton, 968 F.2d 947, 962 (9th

Cir.1992) (no departure available because of disparities between state and federal sentencing

regimes); United States v. Dockery, 965 F.2d 1112, 1118 (D.C.Cir.1992) (allowing departures for

other forum's "transferred" defendants would defeat the standardizing purpose of the sentencing

guidelines).

       The Commission did consider that the "charge offense" system gave the prosecutor influence

on sentencing but decided that the prosecutor's ability to increase a sentence would be limited by

the defendant's actual conduct. See U.S.S.G. Ch.1, Pt.A, 4(a). Searcy could not have been charged

if there was not a prima facie case allowing the prosecutor to file in federal court.

       We follow the other circuits. Allowing departure because the defendant could have been

subjected to lower state penalties would undermine the goal of uniformity which Congress sought

to ensure: federal sentences would be dependent on the practice of the state within which the federal

court sits. Because the district court correctly refused to depart from Searcy's applicable guidelines

range on the basis of the punishment that would be imposed in state court, we affirm.

       AFFIRMED.
