                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 97-3815
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Nebraska.
Gerald D. James,                         *
                                         *     [UNPUBLISHED]
             Appellant.                  *
                                    ___________

                            Submitted: March 31, 1999
                                Filed: April 6, 1999
                                    ___________

Before RICHARD S. ARNOLD, WOLLMAN, and BEAM, Circuit Judges.
                           ___________

PER CURIAM.

       Gerald D. James appeals his convictions and resulting sentence in the district
court1 after a jury trial on charges of conspiring to distribute methamphetamine and
cocaine. We affirm.

       James argues the district court plainly erred by failing sua sponte to declare a
mistrial in response to comments the government made in its closing argument


      1
      The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
regarding the guilty pleas of several government witnesses. However, we do not
believe the jury’s verdict could reasonably have been affected by the prosecutor’s
comments, especially given that both the government and the court cautioned the jurors
against inferring James’s guilt from the guilty pleas of his coconspirators. See United
States v. Johnson, 968 F.2d 768, 769-70 (8th Cir. 1992). James also argues the district
court erred in refusing to depart downward under U.S. Sentencing Guidelines Manual
§ 5H1.4 (1998) based on his physical condition, but the court’s decision was
discretionary, and thus unreviewable on appeal. See United States v. Saelee, 123 F.3d
1024, 1025 (8th Cir. 1997).

      Accordingly, we affirm.

      A true copy.

             Attest:

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




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