United States v. Poore , 53 F. App'x 700 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4181
TIKISHA LA’NEE POORE,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CR-01-205)
Submitted: December 19, 2002
Decided: January 6, 2003
Before WILKINS and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
COUNSEL
Clinton W. Smith, Charleston, West Virginia, for Appellant. Kasey
Warner, United States Attorney, Stephanie L. Haines, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. POORE
OPINION
PER CURIAM:
Tikisha Poore appeals the district court’s denial of the Govern-
ment’s motion for a downward departure following her guilty plea to
one count of possession with intent to distribute cocaine base in viola-
tion of 21 U.S.C. § 841 (2000). Poore was sentenced to a 108-month
term of imprisonment. On appeal, Poore argues the district court
abused its discretion in denying the motion for a downward departure
because the court erroneously determined it lacked the authority to
grant the motion. Poore asserts that her extraordinary assistance in the
prosecution of co-defendants took her case out of the heartland of
cases anticipated under the Sentencing Guidelines. See United States
Sentencing Guidelines Manual § 5K2.0 (2000).
In a unique case, the district court may grant a motion for a down-
ward departure; however, it is under no obligation to do so. Here, the
record clearly demonstrates that the court was cognizant that it did
possess the authority to grant the Government’s motion for a down-
ward departure but, in its discretion, denied it. The court stated that
it had the authority to depart, but found that Poore’s cooperation was
adequately rewarded with a reduction for acceptance of responsibility.
The court further found that this case was not outside the heartland
of the guidelines and a downward departure would "violate the spirit
of the guidelines" and "undermine" them. Because the court clearly
recognized its authority to depart, and chose not to do so, its decision
is not reviewable on appeal. United States v. Brock, 108 F.3d 31, 33
(4th Cir. 1997).
Accordingly, we dismiss Poore’s appeal. We dispense with oral
argument, because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
DISMISSED