                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 99-4306
                                    ___________

United States of America,                *
                                         *
            Appellee,                    *
                                         *
      v.                                 * Appeal from the United States
                                         * District Court for the
Richard Eugene Eddy,                     * District of Nebraska.
                                         *
            Appellant.                   *      [UNPUBLISHED]
                                    ___________

                            Submitted: January 4, 2001
                                Filed: January 12, 2001
                                    ___________

Before RICHARD S. ARNOLD, HANSEN, and BYE, Circuit Judges.
                           ___________

PER CURIAM.

       Richard Eddy pleaded guilty to causing a videotape of child pornography to be
mailed and delivered to him, in violation of 18 U.S.C. § 1461, and was sentenced to
fifty-two months imprisonment and three years supervised release. For the reasons
discussed below, we reject each of the arguments he raises on appeal, and we affirm.
       First, Eddy argues that the district court1 erred in setting his base offense level
under U.S.S.G. § 2G2.2 rather than U.S.S.G. § 2G2.4. We disagree: the proper
Guideline was applied because Eddy received through the mail a videotape involving
the sexual exploitation of a minor.

       Next, Eddy argues that his offense level should not have been increased by two
under U.S.S.G. § 2G2.2(b)(1) because there was insufficient evidence that the
videotape depicted a prepubescent minor or a minor under the age of twelve years. We
conclude that the district court--having personally viewed the videotape, and having
considered the affidavit of a pediatrician who opined that the girl was prepubescent and
younger than eleven--did not clearly err. See United States v. Marquardt, 949 F.2d
283, 286-87 (9th Cir. 1991) (per curiam) (district court did not clearly err in
determining that subject was prepubescent where postal inspector so opined, films were
furnished to court, and defendant did not present any evidence to contrary).

       Finally, Eddy argues that the district court erroneously denied his entrapment-
based downward-departure motion. The matter is unreviewable, however, because the
court was aware of its authority to depart and discretionarily declined to do so. See
United States v. Turechek, 138 F.3d 1226, 1228 (8th Cir. 1998) (district court’s
discretionary decision not to depart downward from Guidelines is unreviewable so long
as court was aware of its authority to do so).

      Accordingly, we affirm the judgment of the district court.




      1
      The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.
                                           -2-
A true copy.

      Attest:

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




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