        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206
     ELECTRONIC CITATION: 2000 FED App. 0103P (6th Cir.)
                 File Name: 00a0103p.06


UNITED STATES COURT OF APPEALS
               FOR THE SIXTH CIRCUIT
                 _________________


                              ;
                               
 UNITED STATES OF AMERICA,
                               
           Plaintiff-Appellee,
                               
                               
                                        Nos. 98-4087/4369
            v.
                               
                                >
 BRETT L. HENDERSON            
                               
                               
 (98-4087), DAVID NELMS

       Defendants-Appellants. 
 (98-4369),
                              1

       Appeal from the United States District Court
      for the Southern District of Ohio at Columbus.
     No. 97-00098—George C. Smith, District Judge.
                Submitted: March 8, 2000
           Decided and Filed: March 23, 2000
  Before: WELLFORD, SILER, and GILMAN, Circuit
                    Judges.
                   _________________
                        COUNSEL
ON BRIEF: Brian E. Goldberg, DANA & PARISER,
Columbus, Ohio, William K. Fulmer, II, Erlanger, Kentucky,


                             1
2    United States v. Henderson, et al. Nos. 98-4087/4369

for Appellants. Robyn R. Jones, ASSISTANT UNITED
STATES ATTORNEY, Columbus, Ohio, for Appellee.
                   _________________
                       OPINION
                   _________________
  RONALD LEE GILMAN, Circuit Judge. Brett Henderson
and David Nelms pled guilty to conspiring to import cocaine
in violation of 21 U.S.C. § 963. Both are appealing their
sentences, claiming that their criminal history categories
overstate the seriousness of their past conduct. Because of
this, they argue that the district court erred when it denied
their motions for a downward departure from the United
States Sentencing Guidelines. Henderson also argues that the
district court erred when it assessed him with three criminal
history points, pursuant to U.S.S.G. § 4A1.1(a), for serving a
sentence in excess of one year and one month for a past
robbery conviction. The district court rejected Henderson’s
and Nelms’s arguments and found that their criminal history
categories adequately reflected their numerous past
convictions. For the reasons set forth below, we AFFIRM
the judgment of the district court.
                    I. BACKGROUND
  In the summer of 1996, two brothers, Mark and Gary
Seawell, developed an organization to import cocaine from
Belize and Mexico into Columbus, Ohio for distribution.
From the summer of 1996 through the summer of 1997, the
Seawells hired other individuals, including Brett Henderson,
to recruit couriers for them. A courier would travel to
Chetamul, Mexico and receive a pair of tennis shoes with a
half kilogram of cocaine concealed in the sole of each shoe.
Upon receiving the shoes, a courier would place them on his
feet and wear them back to Columbus. Henderson and the
other recruiters would pick up the cocaine from their
respective couriers and deliver it to Gary Seawell for
distribution.
10   United States v. Henderson, et al. Nos. 98-4087/4369   Nos. 98-4087/4369 United States v. Henderson, et al.          3

category that Henderson received with nine points. Thus,       Nelms was involved in a cocaine shipment for the Seawells
even if Henderson’s argument had merit, the applicable      in August of 1997. Instead of having couriers bring the drugs
guideline sentencing range would have remained the same.    back in their tennis shoes, this particular shipment was sent by
                                                            mail from Belize to Columbus. The United States Customs
                 III. CONCLUSION                            Service, however, intercepted this shipment and made a
                                                            controlled delivery to one of Nelms’s co-conspirators. Gary
  For all of the reasons set forth above, we AFFIRM the     Seawell then instructed this co-conspirator to give the cocaine
judgment of the district court.                             to another co-conspirator named Richard Meighan. When
                                                            Meighan arrived to pick up the package of cocaine, Nelms
                                                            was with him. Upon being approached by the police, Nelms
                                                            fled. Nelms was ultimately arrested. The box in which the
                                                            cocaine had been shipped was recovered from the location
                                                            where Nelms had attempted to hide it during the chase.
                                                            Subsequent investigation further revealed that Nelms had
                                                            distributed cocaine for the Seawells in the past and was
                                                            expecting to receive a portion of the cocaine delivered in the
                                                            August shipment.
                                                              Shortly thereafter, Henderson and Nelms were indicted on
                                                            numerous drug charges. On December 24, 1997, pursuant to
                                                            separate plea agreements, they each pled guilty to conspiring
                                                            to import cocaine in violation of 21 U.S.C. § 963. Prior to
                                                            sentencing, the government filed motions, pursuant to
                                                            U.S.S.G. 5K1.1, seeking downward departures for both
                                                            Henderson and Nelms based on their assistance in the
                                                            investigation of their co-conspirators. Because Henderson
                                                            had provided more assistance than Nelms, the government
                                                            recommended that the district court depart four offense levels
                                                            for Henderson and three offense levels for Nelms. The
                                                            district court granted the government’s motion and departed
                                                            accordingly.
                                                               In determining Henderson’s sentence, the district court
                                                            pointed out that he had twelve convictions as an adult. All of
                                                            them were not included in Henderson’s criminal history
                                                            computation due to the length of time that had passed since
                                                            some of them had occurred. Those that were utilized for
                                                            purposes of the computation included a conviction for
                                                            operating a motor vehicle while under the influence (OMVI)
                                                            in 1987, a robbery conviction in 1990, OMVI convictions in
4     United States v. Henderson, et al. Nos. 98-4087/4369          Nos. 98-4087/4369 United States v. Henderson, et al.           9

1993 and 1995, a conviction for driving under a suspended             Now, according to 4A1.1(a), three points are added for
license in 1995, disorderly conduct convictions in 1996 and           each prior sentence of imprisonment exceeding one year
1997, and a negligent assault conviction in 1997. Henderson           and one month. On May 30th of 1990, the defendant was
received a total of nine criminal history points that resulted in     sentenced to 3-15 years of imprisonment for robbery. On
a criminal history category of IV for purposes of sentencing.         November 27th of 1991, the defendant received shock
These nine points were derived by assessing Henderson three           probation. This term of imprisonment clearly fulfills the
criminal history points for the 1990 robbery conviction, see          criteria for a three-point enhancement under 4A1.1(a).
U.S.S.G. § 4Al.1(a), four points for the other numerous               Therefore, the Court finds that the defendant is deserving
convictions that he had, see U.S.S.G. § 4A1.1(c), and two             of the three criminal history points pursuant to that
points for committing the instant offense while on probation,         section.
see U.S.S.G. § 4A1.1(d).
                                                                    As pointed out by the district court, three points are added for
  Henderson made several objections to his criminal history         each prior sentence of imprisonment exceeding one year and
calculation. One of his primary contentions was that his            one month. See U.S.S.G. § 4A1.1(a). Henderson admits that
criminal history category overstates the seriousness of his past    he served a sentence of one year and approximately six
conduct. In other words, because his past criminal history          months for his 1990 robbery conviction. Consequently,
consists of a number of “minor” violations, Henderson argued        § 4A1.1(a) is clearly applicable.
that his criminal history category exaggerates the significance
of his past conduct. His other main argument was that he              Henderson, however, attempts to avoid the application of
should not receive the three point assessment for his 1990          § 4A1.1(a) by arguing that his sentence on the robbery
robbery conviction because of his unsupported contention that       conviction would have been less than one year and one month
he was supposed to get “shock probation” after he had served        had his defense lawyer in 1990 filed for “shock probation” in
only six months in prison. Shock probation is a term of art         a more timely fashion. This argument, however, is unavailing
for early release that may be granted in the discretion of the      because this circuit has held that “the federal sentencing
Ohio trial court. See Ohio v. Bistarkey, No. 90-CR-290, 1994        forum [is] not the proper forum for a constitutional challenge
WL 456473, *2 (Ohio Ct. App. Aug. 19, 1994); O.R.C. §               to a prior conviction used to enhance a sentence.” Turner v.
2947.061. Because defendants are able to get out of prison          United States, 183 F.3d 474 (6th Cir. 1999) (citing Custis v.
much sooner than under normal conditions, many state                United States, 511 U.S. 485 (1994)).
defendants file motions for shock probation in Ohio.
                                                                       Finally, even if the district court had accepted Henderson’s
   The district court, however, concluded that Henderson’s          argument and found that he should have served only six
criminal history category was not overstated and pointed out        months for his robbery conviction instead of a year and six
that the plain language of § 4A1.1 mandated that the court          months, such a finding would not have changed his overall
add three points for the robbery conviction. It then departed       criminal history category. Under § 4A1.1(b), two points
downward four offense levels because of Henderson’s                 would have been assessed for the 1990 robbery conviction
assistance to the government, which was a 70-month                  because Henderson’s sentence would have exceeded sixty
reduction, and sentenced Henderson to 140 months of                 days. If two points are used instead of three, then
imprisonment, followed by a 5-year period of supervised             Henderson’s total criminal history points would have been
release, and a $100 special assessment. Henderson timely            eight instead of nine. Eight criminal history points, however,
filed a notice of appeal.                                           still result in a criminal history category of IV, the same
8      United States v. Henderson, et al. Nos. 98-4087/4369      Nos. 98-4087/4369 United States v. Henderson, et al.         5

    convictions. The Court finds that these convictions do          With respect to Nelms’s sentence, his record includes
    not produce a criminal history category which                juvenile convictions for receiving stolen property and
    significantly over represents the defendant’s criminal       attempted drug abuse, neither of which were used in
    history and are an accurate prediction of the defendant’s    calculating his criminal history. As an adult, Nelms has a
    likelihood to commit further crimes. So, therefore, no       conviction for aggravated trafficking in drugs in 1991, four
    downward departure is warranted.                             drug convictions between the span of 1992 to 1993, and a
                                                                 drug abuse conviction in 1995. Nelms’s six drug convictions
In addressing a similar argument from Nelms, the district        resulted in a criminal history score of thirteen under the
court further acknowledged its authority to depart downward:     guidelines. He is also a “career offender” because, as an
                                                                 adult, he had been convicted of two felony drug crimes prior
    [I]f reliable information indicates that the defendant’s     to his felony plea on the cocaine importation charge. See
    criminal history category does not adequately reflect the    U.S.S.G. 4B1.1. A total criminal history score of thirteen
    seriousness of the defendant’s past criminal conduct or      combined with his career offender status resulted in a criminal
    the likelihood that the defendant will commit other          history category of VI.
    crimes, the Court may consider imposing a sentence and
    departing from the otherwise applicable guideline range.        At Nelms’s sentencing hearing, he argued that the offenses
    The example might be two misdemeanors close to a 10-         that made him a career offender were committed when he was
    year prior instant offense. . . . The Court finds that a     eighteen and nineteen years old and involved only a small
    departure in this case is unwarranted and due to the         amount of drugs. Thus, according to Nelms, his “prior history
    constant violations and convictions that the defendant has   [did] not accurately reflect the gravity of the career offender
    had, that the departure is not applicable under 4A1.3 or     status.” The district court, however, found that Nelms’s
    any other paragraph of that report.                          criminal history category adequately reflected his past
                                                                 conduct, especially considering the amount of violations that
Because the district court was clearly aware of its discretion   he had committed. On the other hand, it did depart downward
to depart downward in both Henderson’s and Nelms’s cases,        three levels on account of Nelms’s assistance to the
its informed decision not to depart is unreviewable. See         government. This departure resulted in a thirteen month
United States v. Brown, 66 F.3d 124, 128 (6th Cir. 1995)         reduction from the low end of Nelms’s original guideline
(“[A] lower court’s informed decision not to depart from a       range and a sixty month reduction from the maximum
valid guideline range is not reviewable.”).                      possible sentence that he could have received. After the
                                                                 departure, Nelms’s offense level was twenty-eight and his
C. The district court properly assessed three criminal           criminal history category was VI, which resulted in a
   history points for the sentence that Henderson                sentencing range of 140 to 175 months. Nelms was sentenced
   received relating to his robbery conviction                   to 175 months of imprisonment, followed by a 4-year period
                                                                 of supervised release, and a $100 special assessment.
  Henderson also argues that he should not have been             Because Nelms ran from the arresting officers, attempted to
assessed three criminal history points for serving over one      conceal evidence, and had a lengthy criminal history, he was
year and one month in prison for his robbery conviction. See     sentenced at the high end of the guideline range. Nelms filed
U.S.S.G. § 4A1.1(a). In addressing that argument, the district   a timely notice of appeal.
court concluded as follows:
6      United States v. Henderson, et al. Nos. 98-4087/4369       Nos. 98-4087/4369 United States v. Henderson, et al.           7

                        II. ANALYSIS                              “[u]nless a district court mistakenly believes that it lacks the
                                                                  legal authority to depart below the guidelines range, this court
A. Standard of review                                             may not review a district court’s decision not to depart.”);
                                                                  United States v. Pruitt, 156 F.3d 638, 650 (6th Cir. 1998) (“A
  Both Henderson and Nelms argue that the district court          district court’s discretionary refusal to depart downward is
abused its discretion when it denied their motions for a          generally not appealable, unless the district court mistakenly
downward departure. The government counters by arguing            believed it did not have legal authority to depart downward.”).
that the district court did not abuse its discretion because it   Consequently, the primary issue in the case before us is
was aware that it had the authority to depart downward. All       whether the district court believed that it had the legal
of the parties cite Koon v.United States, 518 U.S. 81 (1996),     authority to depart downward if it were to find that
for the proposition that we review a district court’s decision    Henderson’s and Nelms’s criminal history categories
not to depart for an abuse of discretion. Koon, however, dealt    overstated the seriousness of their past conduct.
with a district court’s affirmative decision to depart
downward, which is inapplicable to a district court’s decision      Henderson also argues that the district court erred when it
not to depart from the sentencing guidelines. See United          assessed him with three criminal history points for his 1990
States v. Brown, 98 F.3d 690 (2d Cir. 1996).                      robbery conviction.        With respect to sentencing
                                                                  determinations, we review a district court’s factual findings
  In Brown, the Second Circuit addressed Koon’s                   under the “clearly erroneous” standard, and review its legal
applicability to a decision not to depart from the sentencing     conclusions under the de novo standard. See United States v.
guidelines and held the following:                                Waldon, __ F.3d __, 2000 WL 178107, at * 9 (6th Cir. Feb.
                                                                  17, 2000).
    [I]t is well established in this Circuit that a court’s
    decision not to depart from the Guidelines is not             B. The district court made an informed decision not to
    normally appealable. On appeal, however, Brown urges             depart downward in both Henderson’s and Nelms’s
    that the Supreme Court’s recent decision in Koon . . .           cases, making those decisions unreviewable
    requires that we apply an “abuse of discretion standard”
    to a judge’s decision not to depart from a prescribed           At Henderson’s sentencing hearing, the district court
    Guidelines range. The Koon case, however, concerned           commented as follows regarding Henderson’s argument that
    the appropriate standard for reviewing a judge’s decision     his criminal history category was overstated:
    to depart. Because Koon did not involve a judge’s
    decision not to depart, it does not affect the law of this      Regarding the criminal history being overstated and
    Circuit barring appeal where a district court decides not       asking for a downward departure under 4A1.3, as you
    to depart.                                                      have argued here and in your paperwork, in that it
                                                                    consists of minor violations. Section 4A1.3 states that if
Id. at 692 (citations and parentheticals omitted).                  the defendant’s criminal history category significantly
                                                                    over represents the seriousness of the defendant’s
   We agree with the Second Circuit’s reasoning in Brown and        criminal history or the likelihood that the defendant will
find that Koon does not alter this court’s precedent that           commit future crimes, a downward departure may be
generally precludes appeals from decisions not to depart from       appropriate. In the instant case, the defendant between
the guideline range. See United States v. Rudolph, 190 F.3d         1986 and 1997 had 12 convictions, some of which were
720, 722 (6th Cir. 1999) (holding, in a post-Koon case, that        of a violent nature. They also included three OMVI
