                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 99-1079
                                   ___________

United States of America,            *
                                     *
            Appellee,                *
                                     * Appeal from the United States
      v.                             * District Court for the
                                     * District of Nebraska.
Jason Robertson, also known as Duke, * [UNPUBLISHED]
                                     *
            Appellant.               *
                                ___________

                          Submitted: April 7, 1999

                               Filed: April 9, 1999
                                    ___________

Before WOLLMAN, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________

PER CURIAM.

       Jason Robertson pleaded guilty to conspiring to distribute and possess with
intent to distribute cocaine base, in violation of 21 U.S.C. § 846. At sentencing, the
district court1 denied Robertson’s motion for a downward departure under U.S.
Sentencing Guidelines Manual § 5K2.13, p.s. (1998) for diminished capacity, but
granted the government’s motion to depart based on Robertson’s substantial
assistance. The court then sentenced Robertson to 48 months’ imprisonment and five

      1
      The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
years’ supervised release. After appellate counsel moved to withdraw pursuant to
Anders v. California, 386 U.S. 738 (1967), we granted Robertson permission to file
a pro se supplemental brief, but he has not done so. We now affirm.

       The Anders brief contends that the court erred in denying Robertson’s motion
for a departure under section 5K2.13. 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. Field, 110 F.3d 587, 591 (8th
Cir. 1997) (absent unconstitutional motive, discretionary decision not to depart from
Guidelines is unreviewable on appeal).

      Upon review of the record in accordance with Penson v. Ohio, 488 U.S. 75, 80
(1988), we find no nonfrivolous issues.

      The judgment is affirmed.

      A true copy.

             Attest:

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




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