United States v. Robert G. Kirkeby
United States v. Robert G. Kirkeby
Opinion
27 F.3d 572
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UNITED STATES of America, Appellee,
v.
Robert G. KIRKEBY, Appellant.
No. 94-1567.
United States Court of Appeals,
Eighth Circuit.
Submitted: June 23, 1994.
Filed: June 30, 1994.
Before FAGG, WOLLMAN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
PER CURIAM.
Robert G. Kirkeby appeals the 78-month sentence imposed by the district court after we remanded his initial sentence of 72 months for resentencing in accordance with the Guidelines. We affirm.
On appeal, Kirkeby argues that the district court should have departed under U.S.S.G. Sec. 5K2.0 (" 'an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines' "). Kirkeby, however, never asked the district court to depart under section 5K2.0. He is raising this argument for the first time on appeal, and the district court's failure to determine sua sponte whether it had the authority to depart did not amount to plain error. See, e.g., United States v. Jennings, 12 F.3d 836, 838, 839 (8th Cir. 1994).
Accordingly, the sentence imposed by the district court is affirmed.
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