                         United States Court of Appeals
                                FOR THE EIGHTH CIRCUIT
                                         _____________

                                      No. 00-2504WMKC
                                       _____________

United States of America,               *
                                        *
                        Appellee.       *   Appeal from the United States
                                        *   District Court for the Western
                v.                      *   District of Missouri
                                        *
John C. Kingston,                       *
                                        *
                        Appellant.      *
                                        _____________

                               Submitted: February 14, 2001

                                  Filed: May 2, 2001
                                        _____________

Before LOKEN, BYE, Circuit Judges, and STROM,* District Judge.
                             _____________

STROM, District Judge.

       John C. Kingston (“Kingston”) appeals from the sentencing decision of the
district court.1 We hold that the district court did not abuse its discretion in departing
upward from the Sentencing Guidelines. Furthermore, we hold the amount of departure
is sufficiently supported by evidence and not unreasonable. Finally, we hold that the

       *
           The Honorable Lyle E. Strom, Senior Judge, District of Nebraska, sitting by designation.
       1
          The Honorable Gary A. Fenner, United States District Court Judge for the Western
District of Missouri, Western Division.
district court’s refusal to grant defendant’s motion to depart downward for Kingston’s
early restitution of $51,000 is non-reviewable.


                                     Background


      On September 10, 1999, a criminal complaint charged Kingston with the
interstate transportation of money obtained by fraud, in violation of 18 U.S.C. §
2314. On that same day, Kingston was arrested and detained. On September 22, 1999,
an indictment was returned, charging Kingston with three counts of interstate
transportation of money obtained by fraud. Specifically, the Indictment alleged that
Kingston devised a scheme whereby he convinced victims that he could solve their “tax
problems” and negotiate Offers of Compromise with the Internal Revenue Service
(“IRS”). Some of the victims were referred to Kingston by two loan officers at
Community Home Bank. Kingston did not file or obtain any Offers of Compromise,
and the tax liens on the victims’ properties were not released. Kingston actually forged
documents on some occasions, representing the Offers of Compromise were in fact
accepted by the IRS. The victims then paid directly to Kingston the alleged amounts
owed to the IRS, in addition to Kingston’s fee. Where refinancing was involved, the
check was issued by the bank to Kingston for the tax liability and his fees. Kingston
did not forward any of these funds to the IRS. Apart from the scheme involving
refinancing, Kingston prepared taxes for individuals. In some cases, he inflated the
amount owed and then failed to submit the returns to the IRS. Kingston also took on
the responsibility of forwarding child support payments for one victim, but he did not
forward those payments, exposing that victim to criminal liability.



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      Kingston pleaded guilty to all three counts of the Indictment on November 22,
1999. No plea agreement was executed. On May 31, 2000, following a lengthy
hearing involving numerous witnesses, Kingston was sentenced to forty-eight (48)
months imprisonment, followed by three years of supervised release, restitution of
$263,559, and a Special Assessment of $300, or $100 for each count. The government
requested an upward departure in the sentence. The presentence investigation report
also articulated factual circumstances suggesting an upward departure was warranted.
The forty-eight (48) month sentence represented an upward departure from the
sentencing guideline range of 18-24 months.


      Kingston now appeals his sentence arguing that (1) the district court abused its
discretion in departing upward, and if upward departure was justified, the departure of
twice the maximum sentence was unreasonable; and (2) the district court abused its
discretion in not departing downward for Kingston’s early restitution of $51,000.


      We review a district court’s upward departure decision from the Sentencing
Guidelines under the unitary abuse of discretion standard. United States v. Sample,
213 F.3d 1029, 1032 (8th Cir. 2000).


                                     Discussion
I.    Upward Departure.
      We have previously held that “departure is appropriate only in extraordinary
cases where there exists an ‘aggravating or mitigating circumstance of a kind, or to a
degree, not adequately taken into consideration by the Sentencing Commission in



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formulating the guidelines.’” United States v. Sample, 213 F.3d 1029, 1032 (8th Cir.
2000) (citing 18 U.S.C. § 3553(b)).
      Section 2F1.1 of the Sentencing Guidelines, Application Note 11 states:
             In cases in which the loss determined under subsection
             (b)(1) [amount of loss attributable to the fraud] does not
             fully capture the harmfulness and seriousness of the conduct,
             an upward departure may be warranted.

U.S. Sentencing Guidelines Manual § 2F1.1, cmt. n.11 (1998). The district court

mainly relied upon this section for the upward departure. Specifically, the district court

found that apart from financial loss of the victims, they have also encountered

complicated tax issues as a result of the defendant’s conduct, that the loss contemplated

by the guidelines did not take into account the substantial financial steps taken by the

victims as a result of Kingston’s conduct, that Kingston’s past conviction for

impersonating a federal employee was not considered in calculating his criminal history

category, that Kingston’s failure to properly handle child support payments entrusted

to him by a victim, and thus exposing that victim to criminal liability was particularly

egregious, and that the number of fraudulent schemes involved and their continuance

after Kingston was confronted by the FBI all warranted upward departure.




                                           -4-
       The grounds upon which the district court relied in departing upward are

permissible and are not already taken into account by the Sentencing Guidelines.2

Furthermore, based upon a review of the record, we conclude that there is sufficient

evidence to support the upward departure on the grounds articulated by the district

court, and thus, the district court committed no error.

       As to the amount of departure, we give great deference to a district court’s

determination of the amount of departure, as that court has the “superior feel for the

case.” United States v. Otto, 64 F.3d 367, 371 (8th Cir. 1995).                     Kingston’s

comparison of his case to factually incongruent cases does not support his assertion that

an upward departure amounting to twice the guideline range is unreasonable. Given

the number of permissible reasons for upward departure, we find that the sentence

imposed by the district court was not unreasonable.




       2
          See U.S. Sentencing Guidelines Manual § 2F1.1, cmt. n. 11 (1998). See also United
States v. Saffeels, 39 F.3d 833, 837-38 (8th Cir. 1994) (holding that a district court may depart
upward based upon based criminal conduct, when such conduct is not included in the computation
of criminal history category); United States v. Moskal, 211 F.3d 1070, 1074 (8th Cir. 2000)
(holding that a district court may depart upward based upon a significant number of fraudulent
schemes conducted by the defendant).

                                               -5-
II.   Downward Departure.

      In his motion for downward departure, Kingston claims his payment to the FBI

qualifies as an extraordinary effort at restitution, and a downward departure beyond

acceptance of responsibility is warranted. The district court understood its power to

depart but declined to grant defendant’s motion. We lack the power to review the

district court’s decision because the court understood it had the power to depart. See,

e.g., United States v. Loud Hawk, No.00-2909, 2001 WL 314888 (8th Cir. April 3,

2001) and United States v. Jones, 145 F.3d 959, 965 (8th Cir. 1998).



      Accordingly, the sentence of the district court is affirmed.

      A true copy.

             ATTEST:

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




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