                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 99-1118
                                    ___________

United States of America,                *
                                         *
             Appellee,                   * Appeal from the United States
                                         * District Court for the
      v.                                 * District of Minnesota.
                                         *
Chad Gerard Fouquette,                   *      [UNPUBLISHED]
                                         *
             Appellant.                  *
                                    ___________

                            Submitted: January 4, 2000
                                Filed: January 14, 2000
                                    ___________

Before BOWMAN, FAGG, and MURPHY, Circuit Judges.
                          ___________

PER CURIAM.

       Chad Gerard Fouquette pleaded guilty to assault with a dangerous weapon in
violation of 18 U.S.C. § 113(a)(3) (Supp. IV 1998). At sentencing, the District Court1
denied Fouquette’s motion for a downward departure under U.S. Sentencing Guidelines
Manual § 5K2.13, p.s. (Nov. 1998), for diminished mental capacity and sentenced him
to 33 months imprisonment and 3 years supervised release. Fouquette appeals, and we
affirm.


      1
      The Honorable DAVID S. DOTY, United States District Judge for the District
of Minnesota.
        We conclude Fouquette’s argument that the District Court applied the pre-1998
version of section 5K2.13 is meritless, as the sentencing transcript reflects the Court
quoted the pertinent portion of section 5K2.13 as it appeared in its amended form
effective November 1, 1998. Fouquette also argues the District Court erroneously
denied the diminished-capacity departure without considering the facts or
circumstances of his offense or whether he presented a danger to the community at the
time of his sentencing. Considering the District Court’s comments as a whole, see
United States v. Knight, 96 F.3d 307, 311 (8th Cir. 1996), cert. denied, 520 U.S. 1180
(1997), we conclude that the court was aware of its authority to depart for diminished
capacity and that the court’s exercise of discretion not to depart under the
circumstances is unreviewable, see United States v. Jones, 145 F.3d 959, 965 (8th
Cir.), cert. denied, 525 U.S. 988 (1998).

      Accordingly, we affirm.

      A true copy.

             Attest:

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




                                          -2-
