                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-3632
                                    ___________

United States of America,                *
                                         *
             Appellee,                   * Appeal from the United States
                                         * District Court for the District of
      v.                                 * Minnesota.
                                         *
Albert Adonis Thompson,                  * [PUBLISHED]
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: May 12, 2004

                                   Filed: May 20, 2004
                                    ___________

Before BYE, HAMILTON,1 and HANSEN, Circuit Judges.
                            ___________

PER CURIAM.

       Albert Adonis Thompson pleaded guilty to manufacturing counterfeit
obligations of the United States in violation of 18 U.S.C. § 471. At sentencing, the
district court2 applied a two-level enhancement for obstruction of justice under United
States Sentencing Guidelines (U.S.S.G.) § 3C1.1 and denied Mr. Thompson’s motion

      1
       The Honorable Clyde H. Hamilton, United States Circuit Judge for the Fourth
Circuit, sitting by designation.
      2
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
for a downward departure. Mr. Thompson appeals the district court's sentencing
decisions, and we affirm.

                                           I

       On May 24, 2000, police officers in Lakeville, Minnesota, arrested Lindsay
Bauer after she attempted to make a fast-food purchase using a counterfeit $100 bill.
Ms. Bauer told the police she received the bill from her boyfriend, Albert Adonis
Thompson. Two days later, the United States Secret Service interviewed Mr.
Thompson at Lakeville High School, where he was an eighteen-year-old senior. In
a written statement, he admitted he had used his computer to produce as many as fifty
sheets containing three copies each of the bill and had sold about twenty-five sheets
to various people. He also volunteered he had destroyed the sheets remaining in his
possession and deleted images of the bill from his computer hard drive after learning
of Ms. Bauer's arrest. Agents who later searched Mr. Thompson's computers were
unable to recover the deleted files.

       In a three-count indictment, Mr. Thompson was charged with manufacturing,
transferring, and passing and attempting to pass counterfeit United States obligations.
He pleaded guilty to the manufacturing count. At sentencing, the court applied a two-
level enhancement for obstruction of justice, finding Mr. Thompson had destroyed
evidence of his counterfeiting operation. The court also denied his motion for a
downward departure and finally sentenced him to fifteen months of imprisonment and
three years of supervised release.3




      3
       The court sentenced Mr. Thompson at the low end of the range under Criminal
History Category I, offense level 14. Without the enhancement, the applicable range
would have been 10-16 months. Thus, the 15-month sentence was at most 5 months
longer than it would have been without the enhancement.

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       In rendering its sentencing decisions, the district court observed the unfairness
it perceived in applying the enhancement for conduct the government would not have
discovered or been able to prove without Mr. Thompson’s voluntary confession. In
denying the defense motion for a downward departure to “undo” the effects of the
enhancement, the district court remarked:

      There is another thing that frankly bothers me, and that is, judges read
      newspapers and watch news broadcasts on television, and I know [the
      prosecutor] you're under a great deal of pressure now . . . and I think the
      Court's under some pressures now because frankly I follow the trials and
      tribulations of my chief judge. Consequently, I'm frankly I'm not going
      to give the exceptions. I'm going to apply the enhancement, because I
      think technically you [the prosecutor] are correct. There is no way I can
      read the sentencing guidelines to avoid the conclusions that you reach.
      Even though [defense counsel] makes the best common sensical
      argument and the best argument based on policy, and the best arguments
      based on what probably is right, in a true sense of the word. This is one
      of the those areas where the sentencing guidelines have a lapse, and it
      can cause a problem for the Court in this case, but I'm going to go ahead
      and use the sentencing guidelines rather than challenge the sentencing
      guidelines at this point . . . .

Sentencing Transcript at 9-10 (emphasis added).

      On appeal, Mr. Thompson argues the district court erroneously applied the
obstruction-of-justice enhancement and improperly relied on political considerations
in denying a downward departure.

                                           II

      We review for clear error a sentencing court’s factual findings under U.S.S.G.
§ 3C1.1 and review de novo the court’s application of the Sentencing Guidelines to
the facts. United States v. Molina, 172 F.3d 1048, 1058 (8th Cir. 1999). Mr.

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Thompson does not challenge the district court’s findings he destroyed both the hard
and digital copies of the counterfeit obligations. As a result, our review is limited to
the court’s application of § 3C1.1 to undisputed facts.

      Application Note 4 of § 3C1.1 contains a non-exhaustive list of the types of
conduct constituting obstruction of justice, including the destruction of material
evidence such as documents. The fact the government would not have known of the
destroyed evidence without the defendant’s cooperation does not take the conduct
outside the scope of § 3C1.1. Thus, reviewing the record de novo, we hold Mr.
Thompson’s admitted conduct falls within § 3C1.1 and conclude the district court
properly applied the two-level enhancement.

                                           III

        “A refusal to depart by a sentencing court that is aware of its authority to do so
is not appealable.” United States v. Booker, 186 F.3d 1004, 1007 (8th Cir. 1999). The
district court specifically considered and rejected the defense motion for a downward
departure pursuant to U.S.S.G. §§ 5K2.0 and 5K2.16. The court was undoubtedly
aware it had the authority to grant the departure but declined to do so under the facts
of this case.

       Mr. Thompson maintains impermissible political considerations deterred the
district court from granting the downward departure. True, a refusal to depart
becomes reviewable if a defendant makes a substantial showing the district court’s
refusal was based on an unconstitutional motive. United States v. Williams, 324 F.3d
1049, 1050 (8th Cir. 2003). But we find no such motive on the part of the district
court. The district court merely expressed sympathy for the defendant’s position and
frustration with the Guidelines as they apply in this case. Thus, had the district court
acted upon the allegedly impermissible motive, it would have granted, rather than
denied, Mr. Thompson’s downward-departure motion. Instead, despite its own views,

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                                            4
the court properly refrained from granting a departure it believed was unauthorized
by the Guidelines. As the court stated, addressing government counsel, “There is no
way I can read the sentencing guidelines to avoid the conclusions that you reach . .
. I'm going to go ahead and use the sentencing guidelines rather than challenge [them]
at this point . . . .” Sentencing Transcript at 10. Finding no unconstitutional motive,
we conclude the district court’s refusal to grant the downward departure is
unreviewable on appeal.

                                          IV

       Because the district court properly applied the Guidelines to the undisputed
facts in this case, the court correctly assessed the obstruction-of-justice enhancement.
Further, the district court’s refusal to grant a downward departure is unreviewable on
appeal. Accordingly, we affirm both sentencing decisions.
                          ______________________________




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