                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                 No. 97-2068
                                 ___________

United States of America,             *
                                      *
            Appellee,                 *
                                      * Appeal from the United
                                         States
      v.                              * District Court for the
                                      * District of Nebraska
Donald R. Hughes,                     *
                                      *
            Appellant.                *
                                 ___________

                        Submitted:                October 20, 1997

                              Filed:                   November 10, 1997
                                ___________

Before McMILLIAN, LAY and BEAM, Circuit Judges.
                      ___________


McMILLIAN, Circuit Judge.

      Defendant       Donald R. Hughes appeals from a final
judgment entered in the United States District Court1 for
the District of Nebraska upon his conditional guilty plea
to one count of conspiracy to distribute cocaine base, 21
U.S.C. §§ 841(a)(1) and 846, and one count of criminal
forfeiture, 21 U.S.C. § 853.                United States v. Hughes,


      The Honorable Lyle E. Strom, United States District Judge for the District of
      1

Nebraska.
No. 8:CR95-00128-003 (D. Neb. Mar. 18, 1997) (judgment).
For reversal, defendant argues that the district court
erred in: (1) denying his motion for disclosure of the
identities of two government sources; (2) denying his
motion for a Franks2 hearing; (3) denying his motions to
suppress; and (4) denying his motion for a downward
departure.     Upon careful consideration, we affirm.


        Jurisdiction in the district court was proper based
upon 18 U.S.C. § 3231.             Jurisdiction in this court is
proper based upon 28 U.S.C. § 1291.             A notice of appeal
was timely filed pursuant to Fed. R. App. P. 4(b).


    The following is a summary of the background of this
case.     On the evening of October 8, 1995, officers with
the Omaha Police Department were conducting surveillance
at an apartment complex in Omaha, Nebraska, when they
observed two men enter the apartment complex and later
leave, each time carrying a duffle bag.              The officers
followed the two men’s car and later stopped them.            Upon
receiving consent to search the vehicle and the duffle
bag, the officers discovered crack cocaine and powder
cocaine in the bag.         The officers obtained a warrant to
search and did search the apartment which the two men had
entered.    In that apartment, the officers found evidence
that crack cocaine had recently been manufactured there.
Because the same two men, carrying the same duffle bag,


    2
     Franks v. Delaware, 438 U.S. 154 (1978).
                                    -2-
had been seen leaving defendant’s residence earlier on
October 8, 1995, and for numerous other reasons, law
enforcement officers later obtained a warrant to search
defendant’s   home   and   his     person.   The   warrant   was
executed shortly after 10:00 p.m., on December 14, 1995,
at which time the officers found approximately 170 grams
of crack cocaine and approximately $30,000 in cash.




                                 -3-
Defendant, who had been observed leaving the house by car
just prior to the search, was stopped by the police and
brought     back      to    the    house     while    the    search    was    in
progress.       Defendant reportedly made two statements to
one of the officers at the time of the search.


      Following his indictment, defendant filed three sets
of motions, the dispositions of which were initially
rendered by a magistrate judge3 and subsequently reviewed
by   the   district         court.      First,       defendant       moved   for
disclosure       of        the    identities     of       one   confidential
informant and one “concerned citizen” who had assisted
law enforcement officers in the investigation that led to
the search of defendant’s home.                      The magistrate judge
denied the motion on grounds that neither the concerned
citizen nor the confidential informant was a percipient
witness whose identity was required to be disclosed and
defendant had not shown that disclosure was material or
vital to his right to a fair trial.                        United States v.
Hughes, slip op. at 2-3 (Nov. 12, 1996) (order of the
magistrate judge addressing motion for disclosure of
identities), aff’d id. (Dec. 4, 1996) (district court
order).


      Second,      defendant         moved    for     a     Franks    hearing,
challenging        the       truthfulness       and       validity     of    the



      3
        The Honorable Thomas D. Thalken, United States Magistrate Judge for the
District of Nebraska.
                                       -4-
affidavit used in support of the application for the
warrant to search defendant’s home.          That motion was
denied on grounds that: defendant had not shown the
falsity of the challenged information in the affidavit;
even if the information was false, defendant had not
shown that the affiant acted knowingly or with reckless
disregard for the truth; and, finally, defendant had
failed   to   show   that   redaction   of   the   challenged
information would leave the affidavit without sufficient
information to




                             -5-
support a finding of probable cause.             Id., slip op. at 5
(Nov. 12, 1996) (order of the magistrate judge addressing
motion for a Franks hearing), aff’d id. (Dec. 4, 1996)
(district court order).


       Third,   defendant     moved     for   suppression          of   the
evidence    obtained     upon    the    execution     of     the    search
warrant and for suppression of the statements he made
during the search.       Following an evidentiary hearing on
defendant’s motions to suppress, the magistrate judge
issued a written report recommending that the motions be
denied.    Id., slip op. at 9 (Nov. 12, 1996) (magistrate
judge’s report and recommendation).             The magistrate judge
stated, among other reasons, that there was probable
cause to support the issuance of the warrant under the
totality of the circumstances, id. at 6 (citing Illinois
v. Gates, 462 U.S. 213 (1983)), and, in any case, the
good    faith   exception       would   apply    to    the    officers’
reliance on the warrant, id. (citing United States v.
Leon,     468   U.S.    897     (1984)).        As    to   defendant’s
statements, the magistrate judge found that they were
made voluntarily and were not the product of coercion or
undue influence.       Id. at 9 (citing Connelly v. Colorado,
479 U.S. 157 (1986)).           The district court adopted the
magistrate judge’s report and recommendation.                 Id., slip
op. at 1-2 (Dec. 4, 1996) (approving and adopting the
magistrate judge’s report and recommendation and denying
defendant’s motions to suppress).



                                  -6-
    Defendant   entered   a   conditional   guilty   plea   on
December 9, 1996, and thereafter moved for a downward
departure under the sentencing guidelines.     The district
court declined to depart downward and sentenced defendant
to 240 months imprisonment (within the applicable range
of 235 to 293 months under the guidelines), five years of
supervised release, and a special assessment of $50.00.
This appeal followed.




                              -7-
      We have reviewed the record in the present case and
the    parties’      briefs   on     appeal.      Upon    careful
consideration, we find no basis upon which to reverse the
district court’s decision to deny defendant’s motion for
disclosure of identities, to deny his motion for a Franks
hearing, or to deny his motions to suppress evidence and
statements.       Furthermore,     we   decline   to   review   the
district court’s decision not to depart downward.          United
States v. Evidente, 894 F.2d 1000 (8th Cir.) (holding
that the court of appeals lacks authority to review the
district court’s refusal to depart from the guidelines),
cert. denied, 495 U.S. 922 (1990).


      The judgment of the district court is affirmed.           See
8th Cir. R. 47B.


      A true copy.

           Attest:

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




                               -8-
