                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-1217
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the District
                                        * of Nebraska.
Curtis Anthony Holmes,                  *
                                        *         [UNPUBLISHED]
             Appellant.                 *
                                   ___________

                          Submitted: July 15, 2003

                               Filed: July 21, 2003
                                    ___________

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

PER CURIAM.

       Curtis Anthony Holmes appeals the sentence the district court1 imposed after
he pleaded guilty to conspiring to possess with intent to distribute crack cocaine, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1) and 846. At sentencing, the district court
denied Mr. Holmes’s motion for a downward departure based on claimed
overstatement of his criminal history category. The court thereafter sentenced
Mr. Holmes to 292 months imprisonment and 5 years supervised release. For

      1
       The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
reversal, Mr. Holmes argues that the district court should have departed downward
to impose a lesser sentence.

        Given the district court’s explicit recognition of its authority to depart, its
decision not to depart is unreviewable. See United States v. Orozco-Rodriguez,
220 F.3d 940, 942 (8th Cir. 2000). To the extent that Mr. Holmes’s reference in his
appeal brief to the Tenth Amendment was intended to challenge his sentence on
Tenth Amendment grounds, we will not consider this constitutional argument, which
is raised for the first time on appeal. See United States v. Dixon, 51 F.3d 1376, 1382-
83 (8th Cir. 1995).

      Accordingly, we affirm.

      A true copy.

             Attest:

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




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