United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 96-3128 ___________

United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * District of Minnesota Benny Council, * * [UNPUBLISHED] Appellant. * ___________ Submitted: March 5, 1997 Filed: April 15, 1997 ___________ Before McMILLIAN, FAGG and LOKEN, Circuit Judges. ___________

PER CURIAM.

Benny Council pleaded guilty to making false statements during the purchase of a firearm, in violation of 18 U.S.C. § 922(a)(6). The presentence report (PSR) recommended a Guidelines range of 33-41 months, including a four-level enhancement pursuant to U.S. Sentencing Guidelines Manual § 2K2.1(b)(5) (1995). The district court1 adopted the PSR, but departed downward based on the

The Honorable John R. Tunheim, United States District Judge for the District of Minnesota. government's motion under U.S. Sentencing Guidelines Manual § 5K1.1 (1995), sentencing Council to 15 months imprisonment.

On appeal, Council challenges the section 2K2.1(b)(5) enhancement and the government's support of the enhancement at the sentencing hearing, claiming such support constituted a breach of the plea agreement. Without application of the four-level section 2K2.1(b)(5) enhancement, Council's total offense level of 14 and his category III criminal history score would have yielded a Guidelines sentencing range of 21 to 27 months. Because Council's 15-month sentence represents a downward departure from that range, his sentence is unreviewable. See United States v. Baker, 64 F.3d 439, 441 (8th Cir. 1995); United States v. Wyatt, 26 F.3d 863, 864 (8th Cir. 1994) (per curiam).

Accordingly, we affirm.

A true copy.

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

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