                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-2330
                                   ___________

United States of America,               *
                                        *
                   Appellee,            * Appeal from the United States
                                        * District Court for the District
      v.                                * of Minnesota.
                                        *
Sulieman Mohammed Hamed,                *      [UNPUBLISHED]
                                        *
                   Appellant.           *
                                   ___________

                             Submitted: February 10, 2004

                                  Filed: February 17, 2004
                                   ___________

Before MELLOY, FAGG, and COLLOTON, Circuit Judges.
                           ___________

PER CURIAM.

       Sulieman Mohammed Hamed pleaded guilty to aiding and abetting distribution
of MDMA (“Ecstasy”). The presentence report (PSR) and plea agreement placed
Hamed in criminal history category III. Asserting category III overstated his criminal
history, Hamed moved for a downward departure under U.S.S.G. § 4A1.3 (2002)
(permitting departure when defendant’s criminal history category significantly over-
represents the seriousness of the defendant’s criminal history or the likelihood that
the defendant will commit further crimes). The Government opposed the motion,
noting Hamed had accumulated ten earlier convictions and had violated his probation
seven times. The district court* declined to depart downward, stating, “[I]f not for the
probation violations . . . I probably would grant the motion. . . . I decline to do so for
that reason.” Hamed appeals the denial of his departure motion.

       “Absent an unconstitutional motive, we have no authority to review a district
court’s discretionary decision not to depart from a guideline sentencing range.”
United States v. Walterman, 343 F.3d 938, 942 (8th Cir. 2003). Hamed does not
dispute that the district court’s refusal to depart was discretionary, but asserts the
district court was unconstitutionally chilled from departing by the PROTECT Act’s
Feeney Amendment, which expands appellate review of sentencing departures and
establishes reporting requirements for sentencing decisions. See United States v.
Gonzales-Ortega, 346 F.3d 800, 801-02 (8th Cir. 2003). We doubt that being
disinclined to depart because of the Feeney Amendment amounts to an
unconstitutional motive. We need not decide the constitutional issue, however,
because the record does not support Hamed's factual assertion. The district court’s
comment that others are critical of Koon v. United States, 518 U.S. 81 (1996)
(discussing downward departures), is no basis for believing the district court was
deterred from departing based on the Feeney Amendment, which the district court did
not mention. Without a substantial showing that the district court had an
unconstitutional motive, we cannot review the district court’s discretionary refusal
to depart. Walterman, 343 F.3d at 942; United States v. Williams, 324 F.3d 1049,
1050 (8th Cir. 2003) (per curiam).

      We thus affirm Hamed’s sentence.
                     ______________________________




      *
       The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.

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