United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT

                                    ___________

                                    No. 97-4258
                                    ___________


United States of America,             *
                                      *
             Appellee,                *
                                      *
      v.                              * Appeal from the United States
                                      * District Court for the
Bernabe Tenorio Catalan, also known   * District of Nebraska
as Victor Pena Tenorio,               *
                                      *      [UNPUBLISHED]
             Appellant.               *
                                 ___________

                            Submitted: June 18, 1998

                                Filed: August 3, 1998
                                    ___________

Before McMILLIAN, FLOYD R. GIBSON,1 and WOLLMAN, Circuit Judges.
                           ___________


PER CURIAM.



      1
      The Honorable Floyd R. Gibson was on the original panel in this case. Judge
Gibson has been disabled by illness from reviewing the opinion. Judge McMillian and
Judge Wollman, as the remaining two judges on the panel, have determined the appeal
pursuant to 8th Cir. R. 47E, and the opinion is being filed in the interest of avoiding
undue delay.
       Bernabe Tenorio Catalan (Tenorio) appeals from the final judgment entered in
the District Court2 for the District of Nebraska after he waived indictment and pleaded
guilty to a one-count felony information charging him with possessing
methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The
district court sentenced him to 151 months imprisonment and five years supervised
release. Counsel has filed a brief pursuant to Anders v. California, 

(1967). For reversal, counsel argues the district court erred in denying Tenorio&s
motion for downward departure. For the reasons discussed below, we dismiss the
appeal for lack of jurisdiction.

       Tenorio sought a downward departure on numerous grounds. After hearing
Tenorio&s evidence at sentencing in support of the motion, the district court stated that
it realized “the Court ha[d] the jurisdiction or authority . . . to depart downward in
accordance with the sentencing guidelines,” but denied the departure motion,
concluding departure was not warranted “under the circumstances.” We thus agree
with the government that, because the district court was aware of its discretionary
authority to depart downward under the Guidelines but refused to do so, the district
court’s decision denying downward departure is unreviewable. See United States v.
Saelee, 

, 1025 (8th Cir. 1997) (district court&s discretionary decision not
to depart under Guidelines is unreviewable on appeal absent unconstitutional motive
or unless district court&s decision not to depart is based on legally erroneous
determination that it lacked authority to consider particular mitigating factor).

      Accordingly, we dismiss the appeal for lack of jurisdiction.3


      2
        The Honorable Thomas M. Shanahan, United States District Judge for the
District of Nebraska.
      3
      Although Tenorio pleaded guilty to and was sentenced for possessing
methamphetamine with intent to distribute, in violation of § 841(a)(1), the written
judgment and commitment order indicates he pleaded guilty to conspiring to distribute

                                          -2-
      A true copy.

             Attest:

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




methamphetamine, in violation of § 841(a)(1). See United States v. Tramp, 

, 1037 (8th Cir. 1994) (where oral sentence and written judgment conflict, oral
sentence controls). We thus suggest the district court amend its judgment to clarify the
discrepancy between the oral and written record. See Fed. R. Crim. P. 36 (clerical
mistakes in judgments may be corrected by court at any time).

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