                    United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                               ___________

                                  No. 08-1991
                                  ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        * Appeal from the United States
    v.                                  * District Court for the
                                        * District of Minnesota.
Luetta Kaye Jacobsen,                   *
                                        *    [UNPUBLISHED]
            Appellant.                  *
                                   ___________

                            Submitted: November 10, 2008
                               Filed: January 21, 2009
                                 ___________

Before MURPHY, RILEY, and GRUENDER, Circuit Judges.
                            ___________

PER CURIAM.

       Luetta Kaye Jacobsen (Jacobsen) pled guilty to one count of wire fraud in
violation of 18 U.S.C. § 1343. At sentencing, the district court1 denied Jacobsen’s
motion for a downward departure for her family responsibilities under § 5H1.6 of the
United States Sentencing Guidelines (Guidelines). We affirm.




      1
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.
I.    BACKGROUND
      In 1989, Jacobsen moved to Cabo San Lucas, Mexico (Cabo). Jacobsen began
working as a real estate agent in Cabo and eventually became an independent
franchisee of Coldwell Banker real estate company. As part of her real estate agency,
Jacobsen maintained an escrow account with First International Bank (FIB) in San
Diego, California. Jacobsen directed clients who wanted to purchase real estate in
Cabo to wire funds for the purchase of the Cabo property to the FIB escrow account.
Jacobsen told her clients the money wired to the escrow account would be held in the
account and used to purchase the property the client desired.

       In September 2001, one of Jacobsen’s clients wired money to the FIB escrow
account for the purchase of property in Cabo. The client learned in December 2001
Jacobsen had not used the money wired to the FIB escrow account for the acquisition
of the Cabo property. A subsequent investigation by the Federal Bureau of
Investigation revealed Jacobsen had been transferring some of the money her clients
were wiring to the FIB escrow account to various bank accounts in Mexico. Jacobsen
then used the clients’ money for Jacobsen’s own personal expenses and other liabilities
rather than the purchase of the clients’ designated property.

       On September 19, 2006, a federal grand jury indicted Jacobsen on one count of
wire fraud, a violation of 18 U.S.C. § 1343, in connection with the money Jacobsen’s
client wired to the FIB escrow account in September 2001. Jacobsen pled guilty to this
charge on August 17, 2007. Before her sentencing hearing, Jacobsen filed a motion
asking the district court for a downward departure under § 5H1.6 of the Guidelines due
to her family circumstances and responsibilities.

      At the sentencing hearing, the district court denied Jacobsen’s motion for a
downward departure. The district court then sentenced Jacobsen to 27 months
imprisonment, payment of $804,035.14 in restitution, payment of a $100 special
assessment, and three years supervised release. This appeal follows.

                                         -2-
II.   DISCUSSION
      Jacobsen argues the district court abused its discretion in denying her motion for
a downward departure under § 5H1.6. Jacobsen contends a downward departure was
warranted because she is the sole caretaker, as well as the only financial and emotional
support, for her husband, who has several serious health problems which make day-to-
day tasks virtually impossible for him to perform.

       Once a district court denies a motion for a downward departure under § 5H1.6,
the district court’s decision is unreviewable unless there has been a claim that the
district court acted with an unconstitutional motive or was unaware of its authority to
make a downward departure. See United States v. Phelps, 536 F.3d 862, 868 (8th Cir.
2008) (quoting United States v. Montgomery, 525 F.3d 627, 629 (8th Cir. 2008));
United States v. Orozco-Rodriguez, 220 F.3d 940, 942 (8th Cir. 2000) (affirming a
denial of a request for a downward departure under § 5H1.6 because “we have
consistently held that the district court’s decision not to depart downward is
unreviewable so long as the court was aware of its authority to depart”).

      Neither of the exceptions for reviewing a district court’s denial of a downward
departure is present in Jacobsen’s case. Jacobsen does not allege the district court
acted with any unconstitutional motive, and the district court was aware of its authority
to depart downward under § 5H1.6. During the sentencing hearing, the district court
heard argument from Jacobsen’s counsel and the government regarding Jacobsen’s
family circumstances and her motion for a downward departure. The district court then
“accept[ed] basically the representations made by Ms. Jacobsen with respect to her
husband and her caring for him in his medical condition as true and accurate,” and
denied Jacobsen’s motion for a downward departure. The district court explained it
did “not think this is a case which is so out of the ordinary from other cases where a
primary caregiver commits a crime,” and “[t]he crime which was committed here is an




                                          -3-
extremely serious one.” Based upon this record, there are no grounds to reverse the
district court’s denial of Jacobsen’s motion for a downward departure.2

III.   CONCLUSION
       The judgment of the district court is affirmed.
                      ______________________________




       2
       The government also argues the district court’s sentence was both procedurally
and substantively reasonable under Gall v. United States, __U.S. __, 128 S. Ct. 586
(2007). Jacobsen has not raised any challenge to the reasonableness of the sentence.
Jacobsen confined her arguments to the district court’s denial of her motion for a
downward departure under § 5H1.6. Thus, we need not address the government’s
superfluous argument regarding the reasonableness of Jacobsen’s sentence.

                                         -4-
