United States v. Degree ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5576
ROBERT DEGREE,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, District Judge.
(CR-94-198-MU)
Submitted: December 14, 1995
Decided: January 9, 1996
Before ERVIN, Chief Judge, and WIDENER and WILKINS,
Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
George V. Laughrun, II, GOODMAN, CARR, NIXON,
LAUGHRUN & LEVINE, P.A., Charlotte, North Carolina, for
Appellant. Mark T. Calloway, United States Attorney, Thomas G.
Walker, Assistant United States Attorney, Charlotte, North Carolina,
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Unpublished opinions are not binding precedent in this circuit.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:
Robert Degree pled guilty to conspiring to assist the escape of a
federal prisoner in violation of 18 U.S.C.A. §§ 371 (West 1966 &
Supp. 1995), 752(a) (West Supp. 1995). He was sentenced to serve
one year and one day in prison. Degree appeals his sentence alleging
that the district court failed to recognize its authority to depart down-
ward for extreme vulnerability to victimization in prison. A discre-
tionary decision not to depart is not normally appealable. United
States v. Bayerle, 898 F.2d 28, 31 (4th Cir.), cert. denied, 498 U.S.
819 (1990). However, a decision not to depart based on a perceived
lack of legal authority is reviewed de novo. United States v. Hall, 977
F.2d 861, 863 (4th Cir. 1992). Finding no error, we affirm.
Degree was a deputy sheriff at the Mecklenburg County Jail. He
accepted $2500 from the mother of a federal prisoner being held at
the jail in return for his assistance in helping the prisoner escape.
Degree made his keys available to the inmate, who was apprehended
on his way out of the jail.
At sentencing, Degree requested a downward departure on the
ground that a former law enforcement officer would be subject to
unusual harassment in prison. The district court found that Degree
lacked the frail and feminine qualities of the defendant in United
States v. Lara, 905 F.2d 599, 605 (2d Cir. 1990), which were held to
justify a departure for extreme vulnerability in that case. The court
also found that Degree's law enforcement background had already
been taken into consideration under the applicable sentencing guide-
line, USSG § 2P1.1(b)(4),* which provided for a 2-level increase on
that account. Consequently, the district court found that a downward
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*United States Sentencing Commission, Guidelines Manual (Nov.
1994).
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departure on that basis would be inappropriate. The record discloses
that the district court understood its authority to depart. We agree with
the court's determination that no adequate ground for departure was
present.
We therefore affirm the sentence imposed. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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