United States Court of Appeals


                     FOR THE DISTRICT OF COLUMBIA CIRCUIT


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                            Filed October 23, 1998


                                 No. 98-3003


                          United States of America, 

                                   Appellee


                                      v.


                        Walter Nathaniel Parker, Jr., 

                                  Appellant


                 Appeal from the United States District Court

                         for the District of Columbia

                              (No. 97cr00293-01)


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     Before:  Silberman, Rogers and Garland, Circuit Judges.

                                   JUDGMENT

     The district court sentenced Appellant to 148 months im-
prisonment based on 10 convictions for narcotics-related of-
fenses.  Appellant requested the district court to depart 

downward from the Sentencing Guidelines range because the 
United States Park Police used "excessive and reckless" force 
by deploying two SWAT teams to effectuate his arrest, in the 
course of which appellant sustained serious injuries.  The 
district court concluded that it lacked authority to depart on 
the grounds sought by appellant.

     On appeal, the government acknowledges that "[t]o the 
extent that [the district court] concluded that [it] had no 
authority to depart downward from the Sentencing Guidelines 
based upon reckless police conduct because there was no 
'precedent' for a departure on that ground, we acknowledge 
that [the district court] erred as a matter of law."  Appellee's 
Brief at 14.  We see no reason to remand, however, because 
departing downward on the basis of alleged reckless over-
deployment of SWAT teams would be an abuse of discretion 
given that there is no evidence showing that SWAT personnel 
in any way caused appellant's injuries.  See generally Koon v. 
United States, 518 U.S. 81, 98 (1996);  United States v. 
Fenner, 147 F.3d 360, 363 (4th Cir. 1998) ("we need not 
remand to permit the district court to exercise its discretion 
to depart if its decision to do so on remand would constitute 
an abuse of discretion").

     Accordingly, it is hereby ORDERED that the judgment of 
conviction is affirmed.

     The Clerk is directed to withhold issuance of the mandate 
herein until seven days after disposition of any timely petition 
for rehearing.  See D.C. Cir. Rule 41.

                                                                FOR THE COURT:

                                                                Mark J. Langer, Clerk