
    UNITED STATES of America, Plaintiff-Appellee, v. James GILMORE, Defendant-Appellant.
    No. 00-5709.
    United States- Court of Appeals, Sixth Circuit.
    Sept. 25, 2001.
    Before KENNEDY, GUY, and BOGGS, Circuit Judges.
   ORDER

James Gilmore pleaded guilty to carjacking, kidnapping, and carrying, using or brandishing a firearm during a crime of violence. See 18 U.S.C. §§ 924(c), 1201 and 2119. On January 14, 2000, he was sentenced to 355 months of imprisonment and four years of supervised release. It is from this judgment that Gilmore now appeals. The parties have waived oral argument, and the panel unanimously agrees that oral argument is not needed in this case. See Fed. R.App. P. 34(a).

Gilmore argues that his firearm conviction violated Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the sentencing court assumed that he had brandished a firearm, as required for a mandatory minimum sentence of seven years under § 924(e)(l)(A)(ii). He concedes that this claim is reviewed for plain error because it was not raised in the district court. See United States v. Koeberlein, 161 F.3d 946, 949 (6th Cir.1998).

Our court has applied an Apprendi analysis to statutorily mandated minimum sentences, as well as to statutory máximums. See, e.g., United States v. Ramirez, 242 F.3d 348, 351-52 (6th Cir.2001). Nevertheless, Gilmore’s argument lacks merit because the brandishing factor was charged in his indictment and because he acknowledged a sufficient factual basis for applying that factor when he entered his guilty plea.

The indictment expressly charged Gilmore with violating § 924(c), by knowingly using, carrying and brandishing a firearm during a carjacking. The district court determined that he understood this charge before it accepted his plea. It also advised him that the minimum sentence for a first-time violator of this offense would be “not less than seven years.” Gilmore subsequently acknowledged a sufficient factual basis for his guilty plea, which included an admission that he had struck the victim in the head with a pistol. Moreover, it is clear that the district court did not feel constrained by the seven-year minimum since it imposed a seventeen-year sentence on the firearm charge. Under these circumstances, we conclude that Gilmore’s firearm conviction did not violate the procedural safeguards that were outlined in Apprendi. See United States v. Garcia, 252 F.3d 838, 843-44 (6th Cir. 2001); United States v. Harper, 246 F.3d 520, 530-31 (6th Cir.2001).

Gilmore also argues that the district court abused its discretion by refusing to depart downward from the applicable guideline range under USSG § 5K2.13, in light of his diminished mental capacity. However, he did not file any relevant objections to the presentence report or argue for a downward departure at sentencing. Thus, Gilmore has forfeited this claim in the absence of plain error that affects his substantial rights. See Koeberlein, 161 F.3d at 949.

The district court did not commit plain error here, as a downward departure is not allowed for diminished capacity, when “the facts and circumstances of the defendant’s offense indicate a need to protect the public because the offense involved actual violence or a serious threat of violence.” USSG § 5K2.13(2) (1999). There is also no indication that the sentencing judge was unaware of her discretion to grant a downward departure in appropriate cases. Her decision not to exercise that discretion here is not reviewable on appeal. See United States v. Henderson, 209 F.3d 614, 618 (6th Cir. 2000); United States v. Byrd, 53 F.3d 144, 145 (6th Cir.1995).

Accordingly, the district court’s judgment is affirmed.  