                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-2701
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Southern District of Iowa.
Raymond Lee Rice,                       *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: January 15, 2003

                                  Filed: June 17, 2003
                                   ___________

Before WOLLMAN and MURPHY, Circuit Judges, and AUTREY,1 District Judge.
                        ___________

WOLLMAN, Circuit Judge.

      Raymond Rice pled guilty to one count of bank robbery in violation of 18
U.S.C. § 2113(a), for which the district court2 sentenced him to 151 months in prison,
to be followed by three years of supervised release. Rice appeals the sentence,



      1
       The Honorable Henry E. Autrey, United States District Judge for the Eastern
District of Missouri, sitting by designation.
      2
       The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.
contending that the district court erred in failing to depart downward on account of
physical and emotional abuse Rice had suffered as a child.

       Our review of a sentence is prescribed by statute. United States v. VanHouten,
307 F.3d 693, 696 (8th Cir. 2002). We are required to uphold a sentence unless it
“was imposed in violation of law; was imposed as a result of an incorrect application
of the sentencing guidelines; is greater than the sentence specified in the applicable
guideline range . . . or was imposed for an offense for which there is no applicable
sentencing guideline and is plainly unreasonable.” 18 U.S.C. § 3742(a); see also
VanHouten, 307 F.3d at 696.

       The district court sentenced Rice in accordance with U.S.S.G. § 2B3.1. In
challenging his sentence, Rice contends that the district court erred by failing to
recognize its authority to grant him a downward departure. A district court “has the
authority, which it may exercise in its discretion,” United States v. Evidente, 894 F.2d
1000, 1003 (8th Cir. 1990), to depart from the applicable sentencing guideline if it
determines that there is a “mitigating circumstance of a kind, or to a degree, not
adequately taken into consideration by the Sentencing Commission in formulating the
guidelines . . . ,” 18 U.S.C. § 3553(b). See also U.S.S.G. § 5K2.0; VanHouten, 305
F.3d at 696.        A “discretionary decision not to depart from the Guidelines is
unreviewable on appeal absent an unconstitutional motive.” VanHouten, 307 F.3d
at 696 (citing United States v. Field, 110 F.3d 587, 597 (8th Cir. 1997). An exception
exists, however, when the district court’s decision not to depart was based on its
“legally erroneous determination that it lacked authority to consider a particular
mitigating factor.” United States v. Saelee, 123 F.3d 1024, 1025 (8th Cir. 1997)
(citation omitted).

      Prior to sentencing, Rice asserted that the court should depart downward from
the guideline level assigned based upon his career offender status. Rice argued that
he should not be treated as a career offender, both because his prior criminal history

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had been overstated and because his criminal behavior was the result of the residual
effects of the prolonged emotional and physical abuse that he had suffered throughout
his childhood and adolescence.

       The district court determined that the Sentencing Guidelines proscribed a
departure on the grounds proposed by Rice. Section 5H1.12 states, “Lack of
guidance as a youth and similar circumstances indicating a disadvantaged upbringing
are not relevant grounds for imposing a sentence outside the applicable guideline
range.” U.S.S.G. § 5H1.12 (policy statement). Section 5H1.3, which states that
“[m]ental and emotional conditions are not ordinarily relevant in determining whether
a sentence should be outside the applicable guideline range,” is applied together with
together with § 5K2.13, which precludes courts from departing below the applicable
guidelines range if the act is a violent offense, such as bank robbery. Premachandra
v. United States, 101 F.3d 68, 70 (8th Cir. 1996); U.S.S.G. § 2B3.1. Based on its
reading of applicable case precedent and the guidelines, the district court determined
that even considering “the terrible childhood that [Rice] had,” the guidelines did not
provide “ground[s] for departure.”

       In United States v. Desormeaux, 952 F.2d 182, 185 (8th Cir. 1991), we did not
rule out the possibility that spousal abuse might warrant a downward departure in an
unusual case. Likewise, some courts have recognized a limited ground for departure
in extraordinary cases in which a defendant was the victim of exceptional emotional
or physical child abuse. See United States v. Pullen, 89 F.3d 368, 371 (7th Cir. 1996)
(stating that the sentencing court may use a disfavored factor, such as childhood
abuse, “as a basis for departing from the guidelines range, ‘if the factor is present to
an exceptional degree or in some other way makes the case different from the
ordinary case where the factor is present’”) (citing Koon v. United States, 518 U.S.
81, 96 (1996)); see also United States v. Roe, 976 F.2d 1216 (9th Cir. 1992); United
States v. Vela, 927 F.2d 197 (5th Cir. 1991). We need not determine whether the type
of abuse alleged by Rice can never constitute the basis for a downward departure

                                          -3-
under section 5H1.13, however, because as unfortunate as it was, Rice “has not
shown how his particular history of abuse makes him an extraordinary robber
exceptionally deserving of lenient treatment. To grant a downward departure in these
circumstances would have been an abuse of discretion.” Pullen, 89 F.3d at 372.

      The sentence is affirmed.

      A true copy.

            Attest:

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




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