                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 00-2976
                                     ___________

United States of America,                 *
                                          *
                    Appellee,             * Appeal from the United States
                                          * District Court for the Eastern
      v.                                  * District of Arkansas.
                                          *
Roosevelt Franklin, Jr.,                  *      [UNPUBLISHED]
                                          *
                    Appellant.            *
                                     ___________

                                Submitted: March 14, 2001

                                    Filed: March 22, 2001
                                     ___________

Before RICHARD S. ARNOLD and FAGG, Circuit Judges, and PERRY,* District
      Judge.
                          ___________

PER CURIAM.

       Roosevelt Franklin, Jr., a former corrections officer, pleaded guilty to assaulting
an inmate. Franklin later filed a motion for a downward departure from the applicable
sentencing guidelines range, arguing his aberrant behavior and the minor degree of
injury took his case outside the heartland of excessive force cases. See U.S.S.G. §
5K2.0 (permitting departure for mitigating circumstances of a kind, or to a degree, not

      *
        The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri, sitting by designation.
adequately taken into consideration in formulating the guidelines). At sentencing, the
district court** heard testimony from several witnesses and argument from both parties.
The court noted it had reviewed Koon v. United States, 518 U.S. 81 (1996), and
concluded, "considering the totality of the circumstances," "I just don't think [a
departure is] justified by the evidence that I have heard," "even though . . . [the
sentence is] harsh in your case." On appeal, Franklin argues the district court
erroneously believed it lacked authority to depart from the guidelines range. We
disagree. The district court's remarks make clear that it recognized its authority to
depart, but did not believe the circumstances of Franklin's case justified departure.
Thus, having no jurisdiction to review the district court's decision not to depart, see
United States v. Shepard, 207 F.3d 455, 457 (8th Cir. 2000), we affirm the district
court.

      A true copy.

             Attest:

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




      **
         The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.

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