                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-1861
                                   ___________

United States of America,               *
                                        *
                   Appellee,            * Appeal from the United States
                                        * District Court for the District
      v.                                * of Nebraska.
                                        *
Shawn Rogers,                           *      [UNPUBLISHED]
                                        *
                   Appellant.           *
                                   ___________

                             Submitted: February 13, 2006
                                Filed: February 17, 2006
                                 ___________

Before WOLLMAN, FAGG, and ARNOLD, Circuit Judges.
                          ___________

PER CURIAM.

       Shawn Rogers pleaded guilty to conspiracy to distribute and possess with intent
to distribute five hundred grams or more of methamphetamine. At his post-Booker
sentencing, Rogers moved for a downward departure under U.S.S.G. § 4A1.3 arguing
his criminal history was overstated. The district court* denied the motion and
sentenced Rogers at the low end of the guidelines range to 151 months in prison and
five years of supervised release. On appeal, Rogers contends the district court should
have granted his motion for a downward departure under § 4A1.3.

      *
       The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
       Section 4A1.3(b)(1) provides a downward departure may be warranted if
reliable information shows a defendant’s criminal history category substantially
overrepresents the seriousness of the defendant’s criminal history or the likelihood
that the defendant will commit other crimes. Rogers contends his criminal history
category of IV substantially overrepresents the seriousness of his criminal history,
which includes a conviction for possession of marijuana, a conviction for issuing a
bad check, and two convictions for nonpayment of child support.

       At sentencing, the district court recognized Rogers had filed a motion for a
downward departure based on the overrepresentation of his criminal history. Rogers
declined to present evidence regarding his motion and relied on his argument that the
repeated nonsupport convictions caused his criminal history to be overrepresented.
After hearing argument, the district court stated that although there are more serious
offenses than nonpayment of child support, Rogers’s level of nonsupport indicated
a disregard for court orders and the justice system. The court also observed that
Rogers’s criminal history pattern indicated a need for rehabilitation to affect a change
of lifestyle. The district court clearly recognized its authority to depart and simply
chose not to do so. Under the circumstances, the district court’s refusal to depart is
not reviewable. United States v. Morell, 429 F.3d 1161, 1164 (8th Cir. 2005).

      We thus affirm the district court.
                      ______________________________




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