                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-3313
                                   ___________

United States of America,               *
                                        *
                   Appellee,            * Appeal from the United States
                                        * District Court for the District
      v.                                * of North Dakota.
                                        *
John Swain,                             *      [UNPUBLISHED]
                                        *
                   Appellant.           *
                                   ___________

                             Submitted: June 11, 2002

                                  Filed: June 20, 2002
                                   ___________

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

PER CURIAM.

       John Swain was convicted of assault resulting in serious bodily injury in
violation of 18 U.S.C. §§ 113(a)(6), 1153 (2000) despite his presentation of an alibi
defense at trial. The district court* found Swain was a career offender and sentenced
him to 100 months imprisonment. Swain appeals his conviction and sentence.
Having carefully reviewed the record, we affirm.



      *
       The Honorable Patrick A. Conmy, United States District Judge for the District
of North Dakota.
        Swain contends the evidence is insufficient to support his conviction. Having
reviewed the evidence in the light most favorable to the verdict, giving the
Government the benefit of all reasonable inferences, we disagree. United States v.
Maynie, 257 F.3d 908, 916 (8th Cir. 2001), cert. denied, 122 S. Ct. 1117, and cert.
denied, 122 S. Ct. 1333 (2002). Swain claimed he could not have committed the
assault because he was either at work, with his girlfriend, or traveling between the
two locations. The record, however, shows there was enough time for Swain to travel
to the site of the assault after completing his shift at work. Swain’s girlfriend testified
that Swain was with her during the time of the assault, but she has since pleaded
guilty to perjury in connection with this testimony. Three witnesses identified Swain
as the assailant. Two of these witnesses knew Swain from earlier encounters.
Despite Swain’s claims of witness bias, the jury found these witnesses believable.
We see no reason to doubt the jury’s credibility determinations and conclude there is
ample evidence for a jury to find Swain guilty beyond a reasonable doubt. United
States v. Rayl, 270 F.3d 709, 713 (8th Cir. 2001).

       Swain also contends the district court abused its discretion by refusing to
depart downward from the guidelines range. A district court’s decision not to depart
downward is unreviewable so long as the court was aware of its authority to depart.
United States v. Riza, 267 F.3d 757, 758 (8th Cir. 2001). The district court is
presumed to be aware of its authority to depart downward and our review of the
record shows nothing to the contrary. Id. at 759. Contrary to Swain’s view, the
district court’s comment on the irony of an earlier misdemeanor drug conviction
resulting in a substantial increase in the applicable guidelines range does not indicate
an unawareness of the court’s ability to depart. We thus cannot review the district
court’s refusal to depart from the applicable guidelines range.

      We affirm Swain’s conviction and sentence.




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A true copy.

      Attest:

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




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