United States v. Gibson ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
DALE LEWIS GIBSON, a/k/a Dale  No. 00-4047
Lewis Gibson, a/k/a Derek L.
Hicks, a/k/a Squirrel,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Shelby.
Lacy H. Thornburg, District Judge.
(CR-98-249)
Submitted: November 9, 2000
Decided: December 21, 2000
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
J. Darren Byers, LAW OFFICES OF J. DARREN BYERS, P.A.,
Winston-Salem, North Carolina, for Appellant. D. Scott Broyles,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee.
2 UNITED STATES v. GIBSON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Dale Lewis Gibson pled guilty to one count of conspiracy to pos-
sess with intent to distribute cocaine and cocaine base in violation of
21 U.S.C.A. § 841(a)(1) (1994) and U.S.C. § 846 (1994). Pursuant to
a plea agreement, Gibson was sentenced to 168 months imprison-
ment. On appeal, Gibson claims that the trial court erred by not
departing downward from his prescribed sentencing range based on
the alleged overstatement of his criminal history as a category III, and
in light of his status as a deportable alien. Gibson’s sentence was
within the guideline range for his offense and an argument for a
downward departure was not made on his behalf in the district court.
Finding no reversible error, we affirm.
A sentence within the sentencing guidelines is not reviewable by
this court unless the district court acted under the misconception that
it lacked discretion to depart from the guidelines. See 18 U.S.C.
§ 3742(a) (West Supp. 2000); United States v. Edwards, 188 F.3d
230, 238 (4th Cir. 1999); United States v. Jones, 18 F.3d 1145, 1151
(4th Cir. 1994); United States v. Bayerle, 898 F.2d 28, 32 (4th Cir.
1990). The record does not affirmatively indicate any misapprehen-
sion by the court regarding its authority to depart, and we will not
infer such misapprehension from the court’s silence. See United
States v. Bailey, 975 F.2d 1028, 1035 (4th Cir. 1992).
Accordingly, we affirm Gibson’s sentence. Gibson’s motion for
counsel, requested after counsel had been appointed, is denied as
moot. 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 in the decisional process.
AFFIRMED
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
DALE LEWIS GIBSON, a/k/a Dale  No. 00-4047
Lewis Gibson, a/k/a Derek L.
Hicks, a/k/a Squirrel,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Shelby.
Lacy H. Thornburg, District Judge.
(CR-98-249)
Submitted: November 9, 2000
Decided: December 21, 2000
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
J. Darren Byers, LAW OFFICES OF J. DARREN BYERS, P.A.,
Winston-Salem, North Carolina, for Appellant. D. Scott Broyles,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee.
2 UNITED STATES v. GIBSON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Dale Lewis Gibson pled guilty to one count of conspiracy to pos-
sess with intent to distribute cocaine and cocaine base in violation of
21 U.S.C.A. § 841(a)(1) (1994) and U.S.C. § 846 (1994). Pursuant to
a plea agreement, Gibson was sentenced to 168 months imprison-
ment. On appeal, Gibson claims that the trial court erred by not
departing downward from his prescribed sentencing range based on
the alleged overstatement of his criminal history as a category III, and
in light of his status as a deportable alien. Gibson’s sentence was
within the guideline range for his offense and an argument for a
downward departure was not made on his behalf in the district court.
Finding no reversible error, we affirm.
A sentence within the sentencing guidelines is not reviewable by
this court unless the district court acted under the misconception that
it lacked discretion to depart from the guidelines. See 18 U.S.C.
§ 3742(a) (West Supp. 2000); United States v. Edwards, 188 F.3d
230, 238 (4th Cir. 1999); United States v. Jones, 18 F.3d 1145, 1151
(4th Cir. 1994); United States v. Bayerle, 898 F.2d 28, 32 (4th Cir.
1990). The record does not affirmatively indicate any misapprehen-
sion by the court regarding its authority to depart, and we will not
infer such misapprehension from the court’s silence. See United
States v. Bailey, 975 F.2d 1028, 1035 (4th Cir. 1992).
Accordingly, we affirm Gibson’s sentence. Gibson’s motion for
counsel, requested after counsel had been appointed, is denied as
moot. 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 in the decisional process.
AFFIRMED