FAILURE TO FILE/PAY SENTENCE UPHELD.

                   UNITED STATES COURT OF APPEALS

[2] Appellant John Klepfer appeals from an April 18, 2000 judgment of the district court sentencing him, following his plea of guilty, to one year in prison for failure to file quarterly tax returns and remit taxes due and owing to the Internal Revenue Service, in violation of 26 U.S.C. section 7203. On appeal, he argues that the district court erred in denying his motion for a downward departure on the ground of exceptional family circumstance pursuant to section 5K2.0 of the United States Sentencing Guidelines.

[3] The purported exceptional circumstance warranting departure is the appellant's wife's mental illness. The district court held a series of three hearings at which medical and lay testimony was presented on her history of mental illness, her dependence on appellant in dealing with the illness, the ability of other relatives to provide her and their children assistance during appellant's incarceration, and the potential effect appellant's absence would have on their children in light of his wife's illness.

Magistrate Judge DiBianco denied appellant's request for a downward departure, explaining:

     I don't think this case rises to the level of being truly

[4] "[I]t is well established in this Circuit that a court's decision not to depart from the Guidelines is not normally appealable." United States v. Brown, 98 F.3d 690, 692 (2d Cir. 1996) (citation omitted). A sentencing judge's decision not to downwardly depart is appealable "only where 'the guidelines were misapplied, the court misapprehended its authority or imposed an illegal sentence.'" Id. (quoting United States v. Haynes, 985 F.2d 65, 68 (2d Cir. 1993)). Denials of downward departure requests resulting from the district court's finding, after reviewing the evidence, that the particular facts of the case do not warrant departure are not appealable. See, e.g., id. at 692-94 (sentencing court's denial of departure based on finding that family circumstances were not "extraordinary" held not appealable).

[5] Our review of Magistrate Judge DiBianco's extensive explanation for his denial of appellant's downward departure motion convinces us that the denial was based on his "discretionary judgment" that the evidence did not establish an extraordinary family circumstance. Appellate review is therefore foreclosed. See United States v. Campo, 140 F.3d 415, 419 (2d Cir. 1998) ("our task is not to question the merits of a court's discretionary judgment about the propriety of departure").

[6] Accordingly, the judgment of the district court is hereby AFFIRMED.