                    United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 08-1957
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              * Appeal from the United States
                                         * District Court for the
      v.                                 * Eastern District of Arkansas.
                                         *
Darnell Battles,                         *      [UNPUBLISHED]
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: October 13, 2008
                                  Filed: February 25, 2009
                                   ___________

Before LOKEN, Chief Judge, JOHN R. GIBSON and MURPHY, Circuit Judges.
                              ___________

PER CURIAM.

       Stopped for speeding, Darnell Battles was found to be in possession of nearly
eight grams of crack cocaine and a loaded handgun. He pleaded guilty to possession
with intent to distribute more than five but less than fifty grams, a violation of 21
U.S.C. § 841(a)(1). At sentencing, the district court1 determined that Battles was a
career offender under U.S.S.G. § 4B1.1(a), based in part on a 1986 battery conviction
and a 1997 burglary conviction. This produced a base offense level of thirty-four and
a criminal history category of VI, see U.S.S.G. § 4B1.1(b), resulting in an advisory

      1
       The HONORABLE G. THOMAS EISELE, United States District Judge for the
Eastern District of Arkansas.
guidelines sentencing range of 210-262 months in prison. Rejecting Battles’s
contention that he deserved a downward departure based on his overstated criminal
history, the court imposed a sentence of 210 months in prison. Battles appeals his
sentence. We affirm.

       On appeal, Battles concedes that the district court generally understood its
authority to depart downward from the applicable guidelines range but erred “in
construing the authority to depart” because the age of some prior convictions meant
that his criminal history is outside the “heartland” of career offenders. Under Gall v.
United States, 128 S. Ct. 586, 597 (2007), a district court’s failure to understand its
departure authority under the advisory Guidelines is a type of procedural error. See
United States v. Phelps, 536 F.3d 862, 867-68 (8th Cir. 2008).

       The Guidelines expressly authorize a downward departure if the sentencing
court determines that the defendant’s criminal history is overstated. See U.S.S.G.
§ 4A1.3. We have consistently held that a district court’s decision not to depart
downward is unreviewable so long as the court was aware of its authority to depart.
See United States v. Frokjer, 415 F.3d 865, 874-75 (8th Cir. 2005); United States v.
Riza, 267 F.3d 757, 758 (8th Cir. 2001). Here, as Battles concedes, the district court
acknowledged its authority to depart and solicited argument whether a departure was
warranted. Accordingly, the court’s decision not to depart downward is unreviewable,
and there was no procedural sentencing error. Because Battles was sentenced within
his advisory guidelines range, the sentence is presumptively reasonable on appeal.
United States v. Toothman, 543 F.3d 967, 970 (8th Cir. 2008).

      The judgment of the district court is affirmed.
                     ______________________________




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