UNITED STATES of America, Plaintiff-Appellee,
John Erwin BECK, Defendant-Appellant.
United States Court of Appeals,
Submitted: Feb. 15, 1995.
Filed: Feb. 23, 1995.
48 F.3d 1225
NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that no party may cite an opinion not intended for publication unless the cases are related by identity between the parties or the causes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 BOWMAN, BEAM, and HANSEN, Circuit Judges.
John Beck appeals from a final judgment entered in the district court1 following his guilty plea for aiding and abetting possession with intent to distribute cocaine. Beck contends that the district court erred at sentencing by imposing a two-level enhancement under U.S.S.G. Sec. 2D1.1(b)(1) for possession of a dangerous weapon during the commission of the offense. However, the district court departed downward and imposed a sentence of 36 months which falls below the Guidelines range of 57-71 months that would have resulted without the weapons enhancement and below the mandatory-minimum sentence of five years of imprisonment under 21 U.S.C. Sec. 841(b)(1)(B). Therefore, this issue is unreviewable. See United States v. Wyatt, 26 F.3d 863, 864 (8th Cir. 1994) (district court's imposition of weapon enhancement unreviewable where court granted downward departure below Guidelines range applicable had weapon enhancement not been imposed); United States v. Karam, 37 F.3d 1280, 1284 (8th Cir. 1994) (extent of departure below mandatory-minimum sentence unreviewable). Accordingly, we affirm Beck's sentence.
The Honorable James M. Rosenbaum, United States District Judge for the District of Minnesota