                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-1325
                                    ___________

United States of America,             *
                                      *
           Plaintiff - Appellee,      *
                                      * Appeal from the United States
           v.                         * District Court for the
                                      * District of South Dakota.
Martin Uphoff,                        *
                                      *
           Defendant - Appellant.     *
                                 ___________

                              Submitted: October 20, 2000
                                 Filed: November 13, 2000
                                  ___________

Before HANSEN, MURPHY, and BYE, Circuit Judges.
                           ___________

MURPHY, Circuit Judge.

     Martin J. Uphoff was convicted by a jury of one count of arson in violation of
18 U.S.C. § 844(i) and one count of intentionally damaging a facility providing
reproductive health services in violation of 18 U.S.C. § 248(a)(3). After denying
Uphoff's motion for new trial or provisional sentence, the district court1 sentenced him
to 60 months on the arson count and six months on the second count, to be served
concurrently. Uphoff now appeals his conviction and sentence. We affirm.


      1
       The Honorable Lawrence L. Piersol, Chief United States District Judge for
the District of South Dakota.
        In the early morning of March 29, 1999 a fire was reported at Planned
Parenthood, a reproductive health clinic for women in Sioux Falls, South Dakota.
Police found a bush burning near the front door of the clinic when they responded to
the call. Surveillance tapes from cameras near the front door of the building showed
a person pouring liquid and setting it on fire. Residue taken from the front door later
tested positive for gasoline. Uphoff had been convicted of intentionally damaging the
same property in 1994 and police suspected that he had started the fire, and he admitted
it after his arrest.

       At trial Uphoff asserted an insanity defense. His treating psychiatrist testified
that he suffers from bipolar disorder and that on the night of the fire he had been
suffering from mania. The government's expert witness, a clinical psychologist and
director of forensics at the Federal Medical Center in Rochester Minnesota, did not
dispute that Uphoff suffers from bipolar disorder. After her review of the records and
her interviews with Uphoff and his family, she concluded that on the night of the fire
he had not been having a manic episode. A defense witness testified that Uphoff's
manic episodes occur predominantly during the springtime, and the prosecutor asked
on cross examination whether the witness was aware that April is significant to anti-
abortion protestors since the Waco and Oklahoma City disasters had occurred in that
month. The district court overruled a defense objection, but sustained it the next day
and instructed the jury to disregard the evidence.

       On appeal, Uphoff argues that the district court should have declared a mistrial
because the question about Waco and Oklahoma City was so inflammatory and
prejudicial that it could not be remedied by the curative instruction. He also challenges
his sentence on the grounds that the Eighth Amendment prohibition against cruel and
unusual punishment should protect a person with a mental illness from the 60 month
mandatory minimum sentence and that the district court erred when it held that it lacked
authority to depart from the mandatory minimum. The government responds that the

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denial of a mistrial was not an abuse of discretion because any prejudice was remedied
by the curative instruction, that a 60 month sentence for arson is not cruel and unusual
punishment, and that the district court was unable to grant a departure from the
mandatory minimum required by 18 U.S.C. § 844(i).

      It is presumed that a jury will follow a curative instruction unless there is "an
overwhelming probability" that it was unable to do so. See Greer v. Miller, 483 U.S.
756, 766 n.8 (1987). Because there is nothing to suggest that the curative instruction
was not followed by the jury, the district court did not err in denying a mistrial.

       Uphoff's five year sentence does not violate the Eighth Amendment or any other
provision of the federal Constitution. There was ample evidence by which the jury
could reject his insanity defense, and the imposition of a statutory mandatory sentence
without consideration of mitigating factors does not violate the Eighth Amendment in
circumstances like this. See Harmelin v. Michigan, 501 U.S. 957, 994-95 (1991);
United States v. Rudolph, 970 F.2d 467, 469 (8th Cir. 1992).

       Although a district court may depart under 18 U.S.C. §§ 3553(e) and (f), it may
do so only if the government makes a motion for departure due to substantial
assistance, or if the defendant fits within the safety valve provision. See United States
v. Villar, 184 F.3d 801, 803 (8th Cir. 1999). Neither provision helps Uphoff. Further,
his unbriefed argument that the five year mandatory minimum sentence violates the
Equal Protection clause is without merit.

      For these reasons, we affirm the judgment of the district court.




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A true copy.

               Attest:

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




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