                                                              [PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT

                   ________________________

                          No. 97-8124
                     Non-Argument Calendar
                   ________________________

                D. C. Docket No. 1:96-CR-285-1-GET


UNITED STATES OF AMERICA,
                                                       Plaintiff-Appellee,

                               versus

DUMANIKA SHAMON SEARCY,
                                                   Defendant-Appellant.

                   ________________________

             Appeal from the United States District Court
                for the Northern District of Georgia
                  _________________________

                         (January 14, 1998)

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

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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

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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, 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

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

Commission discourage departure based on those features?

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)

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(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



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from Searcy’s applicable guidelines range on the basis of the

punishment that would be imposed in state court, we affirm.

    AFFIRMED.




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