                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 06-2965
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of Minnesota.
Scott Kimrey Goldsmith,                *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: February 14, 2007
                                Filed: May 18, 2007
                                 ___________

Before RILEY, MELLOY, and SHEPHERD, Circuit Judges.
                            ___________

SHEPHERD, Circuit Judge.

       Scott Kimrey Goldsmith pled nolo contendere to twelve charges of failing to
pay over withheld taxes and four charges of failing to file individual income tax
returns. See 26 U.S.C. §§ 7202, 7203. The district court1 sentenced Goldsmith to
thirty-three months imprisonment. In two issues on appeal, Goldsmith contends that
the district court (1) refused to depart downward on the basis of Goldsmith’s
diminished capacity based upon an erroneous belief that it lacked the authority to
depart, and (2) imposed an unreasonable sentence. We affirm the sentence.

      1
      The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota.
                                         I.

       After working as a civil litigator at law firms in Minneapolis, Minnesota,
Goldsmith established his own law firm, Goldsmith & Associates, in 1997. As owner
and president of Goldsmith & Associates, Goldsmith withheld federal and state
income taxes and Social Security and Medicare taxes from his employees’ paychecks.
Goldsmith, however, did not pay over the tax money to the Internal Revenue Service
(IRS) and the Minnesota Department of Revenue, nor did he pay over his employer’s
share of Social Security and Medicare taxes. Additionally, Goldsmith did not timely
file individual federal or state income tax returns from 1999 through 2002 on
approximately $1.35 million of income.

      In June 2005, Goldsmith was charged with twelve felony counts of failing to
pay over to the IRS the money he withheld from his employees, and four
misdemeanor counts of failing to file his own federal income tax returns. In October
2005, four days before trial was set to begin and without any agreement with the
government, Goldsmith entered pleas of nolo contendere to each of the sixteen counts
in the indictment. Over the government’s objection, the district court accepted
Goldsmith’s plea.

       Before the sentencing hearing, Goldsmith submitted a Sentencing Memorandum
to the district court arguing for a downward departure under United States Sentencing
Guideline section 5K2.13 based on his significantly reduced mental capacity. See
U.S. Sentencing Guidelines Manual § 5K2.13 (2002) (“A sentence below the
applicable guideline range may be warranted if the defendant committed the offense
while suffering from a significantly reduced mental capacity.”) Goldsmith claimed
to suffer from a major depressive disorder that caused his misconduct. The
government opposed a downward departure based on diminished capacity, and
disagreed “with the allegations that Mr. Goldsmith suffered from any such disability.



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It believes Mr. Goldsmith, like most common criminals, preferred to spend money on
himself and was willing to steal it from his employees and the government.”

       At the sentencing hearing, the district court found that, at that moment,
Goldsmith was mentally ill and in need of treatment, and criticized the sentencing
guidelines as a “national policy . . . [that] has . . . put very seriously mentally ill people
in prison.” Despite these findings, the district court denied Goldsmith’s request for
a section 5K2.13 departure, finding that his was “not an unusual case justifying a
departure from the guideline range.” The district court did, however, award
Goldsmith a two-point reduction for acceptance of responsibility, even though
Goldsmith pled nolo contendere, because it found that he was suffering from a
depressive disorder at the time of his change-of-plea hearing.

       The district court calculated Goldsmith’s sentencing range to be thirty-three to
forty-one months imprisonment, and imposed a sentence of thirty-three months. The
district court strongly recommended that the Bureau of Prisons (BOP) place
Goldsmith in the Federal Medical Center in Rochester, Minnesota; instead, the BOP
placed Goldsmith in the Federal Prison Camp in Duluth, Minnesota. Goldsmith
appeals from the judgment of the district court.

                                             II.

       In his first issue, Goldsmith contends that the district court refused to depart
downward on the basis of his diminished capacity based upon an erroneous belief that
it lacked the authority to depart. Specifically, Goldsmith contends that by refusing to
depart, despite finding that Goldsmith was “seriously, seriously mentally ill and [has]
been for a long, long time,” the district court exhibited a belief that it could not depart.




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       “A district court’s refusal to grant a downward departure is generally
unreviewable on appeal, unless the district court had an unconstitutional motive or
erroneously believed that it was without authority to grant the departure.” United
States v. Dabney, 367 F.3d 1040, 1044 (8th Cir. 2004) (quoting United States v.
Gonzalez-Lopez, 335 F.3d 793, 799 (8th Cir. 2003)).

      The district court was aware of its authority to depart pursuant to section
5K2.13 but chose not to do so, a decision that we cannot review on appeal. At the
change of plea hearing, the district court advised Goldsmith before taking his nolo
plea that departures from the guideline range were possible. At the sentencing
hearing, the district court expressly denied Goldsmith’s departure after the matter was
briefed and argued by the parties, stating, “I’m going to deny the requested variance
and I’m going to sentence you within the guideline range because I believe that it is
appropriate in this case.”

        When determining Goldsmith’s sentence, “the Court heavily consider[ed his]
diminished mental health.” The district court recognized that Goldsmith was mentally
ill at the time of the plea and sentencing hearings, and heard evidence that
Goldsmith’s condition caused his misconduct. However, the district court found that
his was “not an unusual case justifying a departure from the guideline range.”
Because the district court was aware of its authority to depart, its decision declining
to depart is unreviewable. See Dabney, 367 F.3d at 1044.

        In his second issue, Goldsmith contends that the district court’s sentence was
unreasonable. Specifically, Goldsmith contends that: (1) the district court’s refusal
to depart was a failure to give considerable weight to a significant factor or a clear
error of judgment; (2) the district court’s alleged belief that national policy required
it to imprison the mentally ill was a failure to give considerable weight to a significant
factor or was a clear error of judgment; and (3) the district court’s reliance on its



                                           -4-
recommendation to imprison Goldsmith in Federal Medical Center-Rochester
amounted to giving significant weight to an improper factor.

        “We review a sentence for unreasonableness, guided by the sentencing factors
listed in 18 U.S.C. § 3553(a).” United States v. Pizano, 403 F.3d 991, 995 (8th Cir.
2005). Sentences within the guideline range are “presumptively reasonable.” United
States v. Lincoln, 413 F.3d 716, 717 (8th Cir.), cert. denied, 546 U.S. 1081 (2005).
        A sentence within the guidelines range may be unreasonable if the sentencing
court: (1) fails to consider a relevant factor that should have received significant
weight; (2) gives significant weight to an improper or irrelevant factor; or (3)
considers only the appropriate factors but in weighing those factors commits a clear
error of judgment. United States v. Haack, 403 F.3d 997, 1004 (8th Cir.), cert. denied,
546 U.S. 913 (2005). We review the reasonableness of a sentence for abuse of
discretion. United States v. Larrabee, 436 F.3d 890, 892 (8th Cir. 2006).

       The district court’s imposition of a thirty-three month sentence, at the bottom
of the guideline range of thirty-three to forty-one months, was reasonable. As the
district court stated at the sentencing hearing, it chose the sentence to reflect the
seriousness of the offense, promote respect for the law, afford adequate deterrence,
and provide just punishment and public protection. See 18 U.S.C. § 3553(a)(2)(A)-
(C). Further, the district court awarded a two-point reduction for acceptance of
responsibility based on Goldsmith’s mental condition, which benefitted Goldsmith,
and was not required.

       Additionally, Goldsmith’s contentions regarding the Haack factors lack merit.
See Haack, 403 F.3d at 1004. The district court did not fail to give considerable
weight to Goldsmith’s mental condition or make a clear error of judgment. As the
district court stated, “When determining this sentence the Court heavily consider[ed]
the diminished mental health of the Defendant.” Further, as we discussed above, the
district court was aware of its authority to depart pursuant to section 5K2.13 but chose

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not to do so. Likewise, the district court denied Goldsmith’s variance because it found
that this was “not an unusual case justifying a departure from the guideline range,” not
because it felt pressured to comply with an overarching national policy of imprisoning
the mentally ill. Finally, the district court acknowledged that the BOP would
ultimately determine where to place Goldsmith, and merely recommended, albeit
strongly, that the BOP place Goldsmith in Federal Medical Center-Rochester.

                                          III.

      Because the district court did not err, we affirm.

                        ______________________________




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