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U.S. v. STEWART

No. 94-4048.

37 F.3d 1449 (1994)

UNITED STATES of America, Plaintiff-Appellee, v. Robert D. STEWART, Defendant-Appellant.

United States Court of Appeals, Tenth Circuit.

October 14, 1994.

Attorney(s) appearing for the Case

Hakeem Ishola (Earl Xaiz, on the briefs), of Yengich, Rich & Xaiz, Salt Lake City, UT, for defendant-appellant.

Matthew R. Howell, Asst. U.S. Atty. (Scott M. Matheson, Jr., U.S. Atty., and Paul M. Warner, Asst. U.S. Atty., on the brief), Salt Lake City, UT, for plaintiff-appellee.

Before ANDERSON, McKAY, and BRORBY, Circuit Judges.

McKAY, Circuit Judge.

The defendant, Mr. Stewart, appeals the sentence imposed on him for illegally possessing and transferring a machine gun, in violation of 18 U.S.C. §§ 922(o) and 924(a)(2). Mr. Stewart claims in his appeal that the sentencing judge, believing he had no discretion at all, improperly failed to exercise the discretion available to him to give a downward departure from the sentencing guidelines. In a recent case, we observed, "the...

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