United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-2479
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Michael S. Shirley, * [UNPUBLISHED]
*
Appellant. *
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Submitted: December 12, 2001
Filed: January 14, 2002
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Before WOLLMAN, Chief Judge, HANSEN, Circuit Judge, and BATTEY,1 District
Judge.
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PER CURIAM.
Michael S. Shirley appeals from the district court’s2 refusal to hold an
evidentiary hearing on his motion for downward departure. We affirm.
1
The Honorable Richard H. Battey, United States District Judge for the District
of South Dakota, sitting by designation.
2
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
On March 1, 2001, Shirley pleaded guilty to conspiracy to distribute
methamphetamine and to criminal forfeiture. On May 11, 2001, Shirley filed a
motion for downward departure on the basis of his physical condition, U.S.S.G. §
5H1.4 (2001), and on the basis of an over-representation of the seriousness of his
criminal history as reflected in the criminal history category, U.S.S.G. § 4A1.3
(2001). The motion included a request for an evidentiary hearing and was
accompanied by a brief in support of the motion. On May 14, 2001, the district court
issued an order denying the motion for an evidentiary hearing and for downward
departure. On May 31, 2001, the district court sentenced Shirley to 188 months of
imprisonment and four years of supervised release.
Conceding that the district court was aware of its authority to depart downward
and that its decision not to do so is thus unreviewable, Shirley contends that the
district court abused its discretion by refusing to hold an evidentiary hearing on the
motion for downward departure.
The United States Sentencing Guidelines require that the district court afford
the parties “adequate opportunity to present information to the court regarding”
disputed sentencing factors. U.S.S.G. § 6A1.3(a) (2001). The court must resolve the
disputed factors in accordance with Federal Rule of Criminal Procedure 32(c)(1).
U.S.S.G. § 6A1.3(b) (2001). Rule 32(c)(1) requires that the district court “afford
counsel . . . the opportunity to comment on the probation officer’s determinations .
. . and must rule on any unresolved objections to the presentence report. The court
may, in its discretion, permit the parties to introduce testimony or other evidence on
the objections.” See also, United States v. Granados, 202 F.3d 1025, 1027-28 (8th
Cir. 2000); United States v. Wise, 976 F.2d 393, 404 (8th Cir. 1992) (en banc).
Shirley’s brief in support of the motion for downward departure contained
pertinent facts and argument that informed the district court of the bases for the
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motion. Thus, the district court did not abuse its discretion in denying the request for
an evidentiary hearing.
The sentence is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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