United States v. Baumgardner

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 95-5890
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KEVIN M. BAUMGARDNER,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp, Jr.,
Chief District Judge. (CR-95-3)
Submitted: July 30, 1996 Decided: September 11, 1996
Before HALL, HAMILTON, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kevin D. Mills, MILLS & SCALES, Martinsburg, West Virginia, for
Appellant. William D. Wilmoth, United States Attorney, Lisa Grimes
Johnston, Assistant United States Attorney, Wheeling, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Kevin M. Baumgardner appeals from the district court's im-
position of his sentence for bank robbery. Specifically, he con-
tends: (1) that the district court committed clear error when it
refused to grant his request for a downward departure from the
Sentencing Guidelines; and (2) that as a matter of law passing a
note to a teller containing the statement, "I have a knife," is
insufficient to justify a three-point enhancement under U.S.S.G.
§ 2B3.1(b)(2)(E). We affirm.
Addressing Baumgardner's first claim, we note that a denial of
a motion for departure is not reviewable on appeal unless the dis-
trict court mistakenly believed that it lacked the authority to
depart. United States v. Darby, 37 F.3d 1059, 1068 (4th Cir. 1994),
cert. denied, ___ U.S. ___, 63 U.S.L.W. 3787 (U.S. May 1, 1995)
(No. 94-7778). In the present case, the district court acknowledged
that in some factual situations a downward departure for the reason
requested might be warranted, but found that the facts were not
present in Baumgardner's case. Given this understanding of author-
ity, this court cannot review the district court's refusal to
depart.
Turning to Baumgardner's remaining claim, we note that the
district court's application of the § 2B3.1(b)(2)(E) enhancement
was based on its finding that Baumgardner did in fact possess a
knife. Thus, we review for clear error. See United States v. Jones,
31 F.3d 1304, 1315 (4th Cir. 1994) (providing standard of review
for factual findings in Sentencing Guidelines application issues).
2
Finding none, we affirm the district court's three-point enhance-
ment. 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 the decisional process.
AFFIRMED
3