United States v. Siler ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4863
DOUGLAS CLEMMONS SILER,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
Richard C. Erwin, Senior District Judge.
(CR-96-106)
Submitted: June 19, 1997
Decided: July 3, 1997
Before WILKINS and MICHAEL, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Cynthia Ann Hatfield, HATFIELD & HATFIELD, Greensboro,
North Carolina, for Appellant. Walter C. Holton, Jr., United States
Attorney, Robert M. Hamilton, Assistant United States Attorney,
Greensboro, 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Unpublished opinions are not binding precedent in this circuit.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:
Douglas Clemmons Siler pled guilty to distribution of crack
cocaine, 21 U.S.C.A. § 841 (West 1981 & Supp. 1997), and received
a sentence of 87 months imprisonment. He appeals the sentence,
argu-
ing that the district court failed to understand its authority to
depart
on the ground of overstated criminal history, USSG § 4A1.3, p.s.,*
failed to make adequate findings in denying his departure motion,
and
failed to make adequate findings in denying his request for a minor
role adjustment. USSG § 3B1.2(b). We affirm.
Generally, the sentencing court's decision not to depart below the
guideline range is not reviewable; however, if the sentencing court
bases its decision on a perception that it lacks the legal
authority to
depart, the decision is a legal one which is reviewed de novo.
United
States v. Hall, 977 F.2d 861, 863 (4th Cir. 1992). Our review of
the
sentencing transcript in this case discloses that the district
court fully
understood its authority to depart and merely exercised its
discretion
not to do so. The issue did not, as Siler suggests, involve an
alleged
factual inaccuracy in the presentence report, which would require
a
factual finding under Fed. R. Crim. P. 32, but rather one committed
to the discretion of the district court. In any case, the court
explained
its reason for deciding against a departure.
In determining that Siler had more than a minor role in the
offense,
the district court expressly adopted the recommended finding con-
tained in the presentence report in response to Siler's objection.
We
have approved this procedure for resolving factual disputes. See
United States v. McManus, 23 F.3d 878, 887 (4th Cir. 1994).
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*United States Sentencing Commission, Guidelines Manual (Nov.
1996).
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Accordingly, we affirm the sentence. We dispense with oral argu-
ment because the facts and legal contentions are adequately
presented
in the materials before the court and argument would not aid the
deci-
sional process.
AFFIRMED
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