                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                         JAN 14 1998
                                    TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
 vs.                                                    No. 97-6203
                                                    (D.C. No. 96-CR-186)
 BLAINE CHARLES MOORE,                                  (W.D. Okla.)

           Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before BRORBY, EBEL, and KELLY, Circuit Judges. **




       Defendant-appellant Blaine Charles Moore pleaded guilty to unlawful

possession of a machine gun, see 18 U.S.C. § 922(o), and received a sentence of

96 months imprisonment, 72 months to be served consecutively to a state

sentence. The federal sentence was based in part on a criminal history score of 13


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.
resulting in a criminal history category of VI. On appeal, Mr. Moore argues that

the district court should have departed downward because the criminal history

category significantly over-represented the seriousness of his criminal history or

the likelihood of recidivism. See generally USSG § 4A1.3, p.s.; United States v.

Maldonado-Campos, 920 F.2d 714, 719, 719 n.2 (10th Cir. 1990). Mr. Moore

relies on the fact that the conduct forming the basis of his state convictions

occurred subsequent to the conduct in the federal case, and that a delayed

prosecution in the federal case resulted in a much higher criminal history score

than would otherwise have occurred. The district court determined that there

were valid reasons for the delayed prosecution and denied Mr. Moore’s request

for a downward departure based on criminal history. See 18 U.S.C. § 3553(b);

USSG § 5K2.0.

      Whether to depart downward is discretionary and ordinarily we are without

jurisdiction to review a district court’s denial of a downward departure. See

United States v. Jones, 80 F.3d 436, 439 (10th Cir.), cert. denied, 117 S. Ct. 139

(1996). We have reviewed the record, including the sentencing transcript, and it

is apparent that the district court was aware of the grounds urged, see III R. 7-8,

exercised its discretion, see id. at 18, and declined to depart downward;

accordingly, we are without jurisdiction. See United States v. Barrera-Barron,

996 F.2d 244, 246 (10th Cir.), cert. denied, 510 U.S. 937 (1993).


                                         -2-
APPEAL DISMISSED.



                    Entered for the Court


                    Paul J. Kelly, Jr.
                    Circuit Judge




                     -3-
