                   United States Court of Appeals
                      FOR THE EIGHTH CIRCUIT




                            _____________

                             No. 96-1589
                            _____________

United States of America,         *
                                  *
          Plaintiff-Appellee,     *   Appeal from the United States
                                  *   District Court for the
     v.                           *   District of Minnesota.
                                  *
Richard William Field, also       *
known as Mike Field,              *
                                  *
          Defendant-Appellant.    *


                            _____________

                  Submitted:     November 20, 1996

                         Filed: April 7, 1997
                             _____________

Before FAGG, WOLLMAN, and HANSEN, Circuit Judges.
                          _____________


HANSEN, Circuit Judge.


     Richard Field appeals the sentence imposed on him by the
district court1 following his conviction of one count of conspiracy
to defraud the United States of funds and one count of mail fraud,
and following his entry of a guilty plea to one additional count of
conspiracy to defraud the United States.    Richard challenges the




     1
      The Honorable David S. Doty, United States District Judge for
the District of Minnesota.
district court's findings that he did not play a mitigating role in
the offense and that he did not accept responsibility for his
offenses, and he challenges the court's refusal to depart downward
because of the economic impact of his incarceration on innocent
third parties.   We affirm.


                                   I.


     On March 23, 1994, a federal grand jury indicted Richard
Field, his brother Clark Field,2 Rudell Oppegard, and Martin Gjerde
on 15 counts, including charges of conspiracy to defraud the United
States of funds in violation of 18 U.S.C. § 371 (1994), mail fraud
in violation of 18 U.S.C. § 1341, and making false statements in
violation of 18 U.S.C. § 1001.     The indictment charged two separate
conspiracies, one involving the Field brothers and Rudell Oppegard
(the Twin Valley State Bank conspiracy), and the other involving
the Field brothers and Martin Gjerde (the Bonanza Valley State Bank
conspiracy).


     Both conspiracies arose out of the Field brothers' application
to the City of Clarkfield, Minnesota, for a Department of Housing
and Urban Development (HUD) Small Cities Grant Program loan in the
amount of    $282,000   to   establish   a    new    whey   drying   business,
Clarkfield   Drying,    Incorporated.        Their   HUD    loan   application
indicated that funding in addition to the HUD grant, specifically
an additional $292,000 of private financing, would be necessary for
the purchase of equipment and building renovation to ensure the
success of the business.     Before agreeing to release the HUD funds,
the Minnesota Department of Trade and Economic Development (MDTED),


     2
      We affirm Clark Field's sentence in a separate appeal filed
today. See United States v. Clark Beach Field, No. 96-1588 (8th
Cir. Apr. ___, 1997).

                                    2
which administered the federal program, required proof through a
loan commitment letter that the private financing had been secured.


     Unable   to   secure     the    necessary    additional      funding     after
numerous attempts, the Field brothers entered into a scheme with
Rudell Oppegard, President of Twin Valley State Bank in Twin
Valley, Minnesota.        Oppegard agreed to provide the Fields with a
false letter of credit in the amount of $292,000, written on Twin
Valley State Bank stationery, which the Fields could use in support
of their HUD loan application.            All three men knew that the money
would not actually leave the bank.                The scheme convinced the
commissioner of the MDTED and the City of Clarkfield that the
required   private       funding    had   been   secured.        Based   on   this
assumption, the MDTED agreed to release the HUD funds to the city,
which would in turn lend the HUD funds to the Fields, provided the
Fields could prove that the Twin Valley State Bank had closed the
bank loan and released the private funding.           Clark Field repeatedly
assured the city that the private funds allegedly secured through
the letter of credit would be released, but the Twin Valley State
Bank did not close on the bank loan and instead informed the city
attorney   that    the    loan     commitment    letter   from    Oppegard     was
unauthorized, because it purported to lend an amount that was
beyond the bank's lending limit.
     After this fraudulent attempt to obtain the HUD funds failed,
the Fields sought to obtain the $292,000 in private funding through
Martin Gjerde, president of the Bonanza Valley State Bank and a
longtime acquaintance of Richard's.           Richard introduced his brother
Clark to Martin Gjerde.       Initially, Gjerde indicated that he would
be unable to provide the private funding they sought because, among
other reasons, Clarkfield was outside the Bonanza Valley State
Bank's service area, and Gjerde was not familiar with Clark.
Richard and Clark then proceeded to create a Minnesota corporation,


                                          3
Minnewaska Capital Investment, Inc., in Glenwood, Minnesota, which
is within the Bonanza Valley State Bank service area.                 Richard was
listed as the president of Minnewaska, a company whose sole purpose
was to funnel money from the bank to Clarkfield Drying, Inc., and
back.


       After the formation of Minnewaska, Gjerde agreed to provide a
paper loan transaction, in which $292,000 would be loaned to
Minnewaska with the understanding among the parties that it would
be repaid within six months.       Richard, Clark, and Gjerde signed the
loan, and the bank advanced the funds to a Minnewaska checking
account with Bonanza Valley State Bank.               The same day, the funds
were transferred to a Clarkfield Drying, Inc., checking account at
Bonanza Valley State Bank, and $173,000 was immediately transferred
back to the bank through the Minnewaska account.                The balance of
$119,000 remained in Clarkfield Drying's account to serve as
evidence that the loan had in fact closed.


       Richard, Clark, and Gjerde represented that $173,000 of the
loan funds had been used to purchase equipment as promised in the
funding letter.        The false loan documents were provided as proof
that    the   Fields    had   obtained   the      necessary   private    funding.
Richard and Clark stated in an affidavit that the funds had been
used    to    purchase    equipment.         In    reliance    on    this   false
documentation, the MDTED released the HUD funding.                  After the HUD
funds had been released, Richard paid the remaining balance of the
loan to Bonanza Valley State Bank, as well as $3,571, purportedly
a payment of interest.          Bank records reveal that the loan was
merely a paper transaction, that the bank never intended to allow
the funds to leave the bank, and that Gjerde had frozen Clarkfield




                                         4
Drying's accounts to assure that the money would not be spent.3
The Fields eventually defaulted on the HUD loan.


     As noted above, numerous federal criminal charges arose out of
these two conspiracies to defraud the United States.    The district
court severed the counts relating to the Twin Valley State Bank
conspiracy from those related to the Bonanza Valley State Bank
conspiracy, and tried them separately.    The first trial involved
the Field brothers and Rudell Oppegard, all charged with one count
of conspiracy to defraud the United States and one count of mail
fraud, arising from the Twin Valley State Bank conspiracy.      The
jury returned guilty verdicts against all three defendants on both
counts.   Facing a second trial on multiple additional counts
relating to the Bonanza Valley State Bank conspiracy, Richard and
Clark decided to plead guilty to one additional count of conspiracy
to defraud the United States, based on their dealings with Gjerde,
and they waived their right to appeal the guilty verdicts resulting
from the first trial.    In return, the government dismissed all
remaining counts of the indictment against them.    Gjerde pleaded
not guilty and proceeded to trial, where he was convicted on one
count of conspiracy to defraud the United States of funds but
acquitted on all other counts.


     At sentencing, the district court denied Richard's requests
for a reduction based on acceptance of responsibility and his role
in the offense, and also denied his motion for a downward departure
based on economic hardship to innocent third parties.   The district
court sentenced Richard to twenty-one months of imprisonment and




     3
      For additional facts concerning Martin Gjerde's involvement
in the scheme, see United States v. Gjerde, No. 96-2033 (8th Cir.
Apr. ___, 1997).

                                 5
two years of supervised release, and ordered partial payment of
restitution in the amount of $5,000.               Richard appeals his sentence.


                                    II.


      Richard Field contends that the district court erred in
calculating his sentence by not granting him a four-level reduction
for   his   claimed   minimal    role    in       the    offense    or   a   two-level
reduction for his claimed role as a minor participant.                            The
Guidelines provide that a defendant's offense level is decreased by
four levels if the defendant was a minimal participant in the
criminal activity and two levels if he was a minor participant.
United States Sentencing Commission, Guidelines Manual, § 3B1.2
(Nov. 1995).      A "minor" participant is one "who is less culpable
than most other participants, but whose role could not be described
as minimal."      USSG § 3B1.2, comment. (n. 3).                   For conduct that
falls   somewhere     between    these       two    categories,      a   three-level
decrease is appropriate.        USSG § 3B1.2.           A "participant['s] status
depends     on   culpability,    which       is     a    determination       requiring
sensitivity to a variety of factors."                   United States v. Hall, 949
F.2d 247, 249 (8th Cir. 1991) (internal quotations omitted).
Because the evaluation of a participant's status in the offense
involves a factual determination, we must accept the district
court's findings regarding a defendant's role in the offense unless
they are clearly erroneous.         United States v. Shaw, 94 F.3d 438,
443 (8th Cir. 1996), cert. denied, Barnes v. United States, 117 S.
Ct. 786 (1997).


      The district court denied any reduction for Richard's role in
the   offense,    concluding     that    he    was       an   average    participant.
Richard now argues that, although he committed certain criminal
acts, he was ignorant of the fact that he was breaking the law.                     He


                                         6
contends that he did not sign the false loan documents with
knowledge of fraud.      Such an assertion is contrary to the guilty
verdicts entered against him as well as his guilty plea.                       The
district court found that while Clark was the impetus behind the
scheme, Richard was "deeply involved in the criminal conspiracy"
and "the scheme to defraud would not have succeeded without his
participation."       (Sent. Tr. at 160.)        The record reveals that
Richard incorporated and was an officer of Clarkfield Drying and
was the president of Minnewaska, the vehicles through which the
schemes to defraud were carried out.           Richard aided in obtaining
the false letter of credit from the Twin Valley State Bank and the
paper transaction      loan   from   Bonanza   Valley    State       Bank.     All
critical documents bore his signature as well as Clark's, Richard
was present at the loan negotiations, and Richard understood that
the money from the Bonanza Valley State Bank loan would never
really leave the bank.


     Nevertheless,     Richard   asserts    that   he   is     entitled      to    a
reduction because he is less culpable than his brother, Clark, whom
the district court found to be the driving force behind the scheme
to defraud.    Even though Richard may have been less culpable than
his brother,    the    record   clearly   indicates     that    he    played      an
integral part in the offense throughout the entire scheme.                     One
defendant can be less culpable than another participant without
necessarily qualifying for a reduction as a minor participant.                 See
United States v. Rodamaker, 56 F.3d 898, 904 (8th Cir. 1995).                     We
conclude that the district court did not clearly err in its
determination that Richard was an average participant in the
offense.
     Richard also contends that the district court erred by not
granting him a reduction for acceptance of responsibility.                         A
district court's decision as to whether a defendant has accepted


                                      7
responsibility for his criminal acts is largely a factual question
that turns on issues of credibility, and we therefore reverse such
a decision only if it is clearly erroneous.       United States v. Behr,
33 F.3d 1033, 1036-37 (8th Cir. 1994).        We afford great deference
to the determination of the district court judge, who is in a
unique position to evaluate whether a defendant has accepted
responsibility for his offense.         United States v. Byrd, 76 F.3d
194, 196 (8th Cir. 1996); USSG § 3E1.1, comment. (n.5).


     Richard asserts that the district court clearly erred in
concluding he had not accepted responsibility because he pleaded
guilty before the start of the bifurcated trial on the charges
arising from   the   Bonanza   Valley    State   Bank   conspiracy.    The
district court found that Richard did not demonstrate an acceptance
of responsibility because he did not timely notify the government
of his intention to plead guilty.       Richard went to trial on the two
counts arising out of his activities in the Twin Valley State Bank
conspiracy.    He denied the factual elements of his guilt.           Only
after the jury found him guilty on those counts did he enter his
plea of guilty to the Bonanza Valley State Bank conspiracy, and
then not until the first day of the second trial.           The timeliness
of his conduct in manifesting an acceptance of responsibility is an
appropriate consideration when determining whether a defendant
qualifies for a reduction on this basis.         USSG § 3E1.1, comment.
(n.1(h)).   Accordingly, we conclude that the district court did not
clearly err in denying Richard a reduction to his offense level for
acceptance of responsibility.
     Finally, Richard contends that the district court erred by not
recognizing its authority to depart downward on the basis of
economic hardship to innocent third parties.            The district court
may impose a sentence outside the guideline range "if the court
finds that there exists an aggravating or mitigating circumstance


                                    8
of a kind, or to a degree, not adequately taken into consideration
by the Sentencing Commission in formulating the guidelines that
should result in a sentence different from that described."                                 USSG
§ 5K2.0 (internal quotations omitted).                      A circumstance that is not
ordinarily relevant to the sentencing determination may be relevant
under this section provided it is "present to an unusual degree and
distinguishes the case from the `heartland' cases covered by the
guidelines in a way that is important to the statutory purposes of
sentencing."       Id.


     We    accord    a     unitary        abuse-of-discretion           review         to   "[a]
district court's decision to depart from the Guidelines," Koon v.
United States, 116 S. Ct. 2035, 2046 (1996), but a discretionary
decision not to depart from the Guidelines is unreviewable on
appeal    absent    an     unconstitutional                motive,    United      States         v.
McCarthy, 97 F.3d 1562, 1578 (1996), cert. denied, 117 S. Ct. 1011
(1997); United States v. Deitz, 991 F.2d 443, 447 (8th Cir. 1993).
We have jurisdiction to review a district court's decision not to
depart only where the decision is based on the district court's
legally    erroneous       determination            that     it    lacked      authority         to
consider a particular mitigating factor.                       Deitz, 991 F.2d at 447.
See also    Koon,        116   S.   Ct.    at       2047    ("whether      a    factor      is    a
permissible basis for departure under any circumstances is a
question of law, and the court of appeals need not defer to the
district court's resolution of the point").
     In this case, Richard moved for a downward departure on the
ground that his imprisonment will cause economic hardship to
innocent   third     parties,       namely          his    family    and       those   persons
employed by his lutefisk business.                     The district court concluded
that "under the facts of this case, a downward departure based on
the impact that the defendant's incarceration will have on his
business and employees is not warranted."                         (Sent. Tr. at 163.)


                                                9
This    record   fairly   indicates    to    us   that   the   district   court
recognized its authority to depart in an exceptional circumstance,
even though family and community ties are not ordinarily relevant
in determining whether to depart from an identified guideline
range, see USSG § 5H1.6, but exercised its discretion not to
depart.     "The court has considered the defendant's argument in
support of departing downward from the applicable guideline range.
. . .     The court concludes that . . . there are no grounds that
justify a departure from the guideline range in this case."               (Sent.
Tr. at 164.)      See United States v. Bieri, 21 F.3d 811, 818 (8th
Cir.), cert. denied, 115 S. Ct. 208 (1994) (recognizing that a
district court's refusal to depart "under the facts of this case"
indicates an acknowledgement of authority to depart; departure
simply was not justified).     Thus, the district court's decision not
to depart is unreviewable.


                                      III.


       Accordingly, we affirm the judgment of the district court.


       A true copy.


            Attest:


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




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