                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 98-1201
                                     ___________

United States of America,                 *
                                          *
             Appellee,                    *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * Eastern District of Missouri
Michael J. Rickert,                       *
                                          *    [UNPUBLISHED]
             Appellant.                   *
                                     ___________

                            Submitted: March 30, 1999

                                 Filed: May 17, 1999
                                     ___________

Before McMILLIAN, LOKEN, and MURPHY, Circuit Judges.
                            ___________

PER CURIAM.

       Michael J. Rickert appeals from the final judgment entered in the District Court1
for the Eastern District of Missouri after he pleaded guilty to transporting in interstate
commerce by computer a visual depiction, the production of which involved the use of
a minor engaging in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(2),
and agreed to forfeit certain property used to commit the offense, pursuant to 18 U.S.C.
§ 2253(a). At sentencing appellant introduced testimony from his therapist and argued

      1
        The Honorable Donald J. Stohr, United States District Judge for the Eastern
District of Missouri.
that a downward departure from the applicable sentencing guidelines range was
warranted because (1) his criminal history category overstated the seriousness of his
prior alcohol-related driving convictions; (2) there existed mitigating circumstances not
taken into consideration by the Guidelines, including his own sexual abuse and his
rehabilitative efforts; and (3) he committed the instant offense “while suffering from
significantly reduced mental capacity” as defined under U.S. S.G. § 5K2.13, p.s.
(1998). The court refused to depart downward and sentenced appellant to 20 months
imprisonment and three years supervised release. For reversal appellant argues the
district court erred in denying his motions for downward departure and abused its
discretion in admitting government Exhibits 2 and 3 at sentencing. For the reasons
discussed below, we affirm the judgment of the district court.

       Reviewing the district court’s comments as a whole, we conclude that the court
was aware of its authority to depart on all three grounds argued by appellant and that
the court’s exercise of discretion not to depart under the circumstances is unreviewable
on appeal. See United States v. Saelee, 123 F.3d 1024, 1026 (8th Cir. 1997) (where
district court correctly understood its discretionary authority to depart rested upon
determination that circumstances of case make it exceptional and atypical, such that it
is outside of heartland of cases, its decision not to exercise such authority is
unreviewable); United States v. Field, 110 F.3d 587, 591 (8th Cir. 1997) (absent
unconstitutional motive, discretionary decision not to depart from Guidelines is
unreviewable on appeal); United States v. Knight, 96 F.3d 307, 311 (8th Cir. 1996)
(court’s decision not to depart downward from Guidelines range because it over-
represented seriousness of earlier convictions is not reviewable on appeal where court
understood it could depart), cert. denied, 520 U.S. 1180 (1997); United States v.
Jackson, 56 F.3d 959, 960 (8th Cir. 1995).

      To the extent appellant is arguing that the court incorrectly determined his
criminal history category by including a 1989 “Blood Alcohol Content” conviction, the
argument is without merit. See U.S.S.G. §§ 4A1.1(c), 4A1.2, comment (n.5) (1998)

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(convictions for driving while intoxicated and “similar offenses by whatever name they
are known” are counted toward defendant’s criminal history); United States v. Herron,
97 F.3d 234, 238 (8th Cir. 1996) (where defendant did not object below, this court
reviews only for plain error), cert. denied, 519 U.S. 1133 (1997).

       Last, the court did not abuse its discretion in admitting Exhibits 2 and 3, because
both were relevant to the determination of appellant’s diminished-capacity departure
motion. See United States v. Harris, 982 F.2d 317, 318-19 (8th Cir. 1992)
(admissibility of evidence at sentencing is committed to sound discretion of district
court); cf. U.S. S.G. § 6A1.3, p.s. (1998) (“In resolving any dispute concerning a factor
important to the sentencing determination, the court may consider relevant information
without regard to its admissibility under the rules of evidence applicable at trial,
provided that the information has sufficient indicia of reliability to support its probable
accuracy.”). Moreover, contrary to appellant’s argument, there is no indication in the
record that the court utilized any criteria other than those set forth in the Guidelines in
determining his sentence. See U.S.S.G. § 1B1.4 (1998) (in determining sentence to
impose within Guidelines range, or whether departure from Guidelines is warranted,
court may consider any information concerning background, character, and conduct of
defendant unless otherwise prohibited by law).

      Accordingly, the judgment is affirmed.




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A true copy.

      Attest:

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




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