53 F3d 335 United States v. McCarthy

UNITED STATES of America, Appellee,
Justin Huntley McCARTHY, Appellant.

No. 94-3799.

United States Court of Appeals,
Eighth Circuit.

Submitted: Apr. 27, 1995.
Filed: May 2, 1995.

53 F.3d 335
NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that no party may cite an opinion not intended for publication unless the cases are related by identity between the parties or the causes of action.

Before FAGG, MAGILL, and BEAM, Circuit Judges.


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Justin Huntley McCarthy appeals his 60-month sentence imposed by the district court1 after he pleaded guilty to a child pornography charge. For reversal, he argues only that, given his health conditions, the district court erred in not granting him a downward departure under U.S.S.G. Sec. 5H1.4. Although section 5H1.4 authorizes downward departures based on extraordinary physical condition, we will not reverse a district court's refusal to depart downward where it was aware of its authority to do so. United States v. Brown, 903 F.2d 540, 545 (8th Cir. 1990); United States v. Evidente, 894 F.2d 1000, 1004-05 (8th Cir.), cert. denied, 495 U.S. 992 (1990). Here, the court was clearly aware of its authority to depart for physical condition, but simply did not believe the circumstances in this case warranted such a departure.


Accordingly, the judgment is affirmed.


The Honorable Paul A. Magnuson, Chief Judge, United States District Court for the District of Minnesota