                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 97-4206
                                     ___________

United States of America,                 *
                                          *
             Appellee,                    *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * District of Minnesota.
William James Hayes,                      *
                                          *      [UNPUBLISHED]
             Appellant.                   *
                                     ___________

                            Submitted: January 21, 1999
                                Filed: January 28, 1999
                                    ___________

Before FAGG, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________

PER CURIAM.

        William James Hayes pleaded guilty to conspiracy to distribute and to possess
with intent to distribute crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846.
On appeal, counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
suggesting that the district court erred in overruling Hayes&s objection to the inclusion
in his criminal history score of a prior conviction for automobile theft for which Hayes
had received 30 days “confinement,” as there was no indication he was represented by
counsel in that prior proceeding. We granted Hayes permission to file a pro se
supplemental brief, but he has not done so.
       Hayes&s recommended Guidelines sentencing range was 77-96 months
imprisonment. At sentencing, the district court1 granted the government&s downward-
departure motion under U.S. Sentencing Guidelines Manual. § 5K1.1, p.s. (1998), and
18 U.S.C. § 3553(e), and sentenced Hayes to 48 months imprisonment and 4 years
supervised release. Because Hayes&s sentence represents a downward departure from
the Guidelines sentencing range that would have resulted if he had prevailed on his
criminal-history-score objection, we conclude his sentence is unreviewable. See
United States v. Baker, 64 F.3d 439, 441 (8th Cir. 1995) (sentence is not reviewable
where district court departs below applicable Guidelines sentencing range with or
without challenged enhancement); cf. United States v. Albers, 961 F.2d 710, 712 (8th
Cir. 1992) (“only the government may appeal a sentence if the sentence is less than the
sentence specified in the guideline range”).

       In accordance with Penson v. Ohio, 488 U.S. 75, 80 (1988), we have reviewed
the record to look for any nonfrivolous issues and have found none.

      Accordingly, we affirm.

      A true copy.

             Attest:

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




      1
      The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.

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