United States v. John Pearson ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4501
JOHN PEARSON, a/k/a JP,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Huntington.
Robert C. Chambers, District Judge.
(CR-99-15)
Submitted: November 18, 1999
Decided: November 30, 1999
Before WILKINS, HAMILTON, and LUTTIG, Circuit Judges.
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Dismissed by unpublished per curiam opinion.
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COUNSEL
George A. Mills, III, Huntington, West Virginia, for Appellant.
Rebecca A. Betts, United States Attorney, Ray M. Shepard, Assistant
United States Attorney, Huntington, West Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
John Pearson pled guilty to aiding and abetting the distribution of
cocaine base (crack), see 21 U.S.C. § 841(a) (1994), and was sen-
tenced as a career offender to a term of 151 months imprisonment.
See U.S. Sentencing Guidelines Manual § 4B1.1 (1998). Pearson
seeks to appeal the district court's decision not to depart below the
career offender guideline range on the ground that it over-represented
his criminal history. See USSG § 4A1.3, p.s. We dismiss.
A sentencing court's decision not to depart is not reviewable on
appeal unless the decision is based on a perception that the court lacks
authority to depart. See United States v. Hall, 977 F.2d 861, 863 (4th
Cir. 1992); United States v. Bayerle, 898 F.2d 28, 31 (4th Cir. 1990).
There is no doubt in this case that the court understood its authority
to depart. The court simply decided that a departure was not war-
ranted. To the extent that the court relied on our pre-Koon* decision
in United States v. Brown, 23 F.3d 839, 840-42 (4th Cir. 1994) (hold-
ing that a § 4A1.3 departure is not justified by the fact that a prior
drug conviction involved a small amount of drugs), the court did not
err. See United States v. Pearce, ___ F.3d ___, 1999 WL 710315, at
*10 (4th Cir. Sept. 13, 1999) (reaffirming holding in Brown).
We therefore dismiss the appeal for lack of jurisdiction. We dis-
pense 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
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*Koon v. United States, 518 U.S. 81, 100 (1996).
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