United States v. Mitchell ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 96-4229
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LEONARD H. MITCHELL,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. M. J. Garbis, District Judge. (CR-95-315-
MJG)
Submitted: November 21, 1996 Decided: December 6, 1996
Before HALL, WILKINS, and HAMILTON, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Phillip M. Sutley, Baltimore, Maryland, for Appellant. Lynne A.
Battaglia, United States Attorney, Martin J. Clarke, Special
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Leonard H. Mitchell was convicted of possessing a firearm
while being a convicted felon, 18 U.S.C.A. § 922(g)(1) (West Supp.
1996), and was sentenced as an armed career offender. 18 U.S.C.A.
§ 924(e) (West Supp. 1996). He seeks to appeal his 265-month sen-
tence, contending that the district court abused its discretion by
refusing to depart downward because of his age (42) and the dif-
ference between the armed career offender sentence and the guide-
line range which would have applied were he not a career offender.
A sentencing court's discretionary decision not to depart from
the guideline range is not subject to appellate review. United
States v. Bayerle, 898 F.2d 28, 31 (4th Cir.), cert. denied, 498
U.S. 819 (1990). However, if the court bases its decision not to
depart on a perceived lack of legal authority, its decision is a
legal one which is reviewed de novo. United States v. Hall, 977
F.2d 861, 863 (4th Cir. 1992). Here, the district court stated its
belief that a departure was not appropriate and, in any case, would
not be upheld on the grounds urged. The court expressed no desire
to depart. We find that the court exercised its discretion in
deciding not to depart.
We therefore dismiss the appeal. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
DISMISSED
2