OpenJurist

1 F3d 1235 United States America v. Rogers

1 F.3d 1235

UNITED STATES of AMERICA, Plaintiff-Appellee,
v.
John Clinton ROGERS, Sr., Defendant-Appellant.

No. 93-5050.

United States Court of Appeals,
Fourth Circuit.

Submitted: July 16, 1993.
Decided: August 2, 1993.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. John T. Copenhaver, Jr., District Judge. (CR-92-160)

Wayne King, Clay, West Virginia, for Appellant.

Michael W. Carey, United States Attorney, R. Brandon Johnson, Assistant United States Attorney, Charleston, West Virginia, for Appellee.

S.D.W.Va.

AFFIRMED.

Before NIEMEYER, HAMILTON, and WILLIAMS, Circuit Judges.

OPINION

PER CURIAM:

1

John Clinton Rogers, Sr., pled guilty to one count of possessing an unregistered shotgun, in violation of 26 U.S.C.Sec. 5861(d) (1988). He appeals the eighteen-month sentence he received on the ground that the district court erred in failing to depart below the guideline range and place him on probation. We affirm.

2

Though Rogers argues that the district court thought it lacked the authority to depart downward, our review of the record convinces us that the district court was aware of its authority but ultimately decided not to depart, and imposed a sentence at the lowest point of the guideline range.

3

This Court has previously decided that a decision not to depart is not reviewable on appeal. United States v. Bayerle, 898 F.2d 28, 3031 (4th Cir.), cert. denied, 498 U.S. 819 (1990). Therefore, we affirm the sentence. 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