NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
John H. Hare, Assistant Federal Public Defender, Columbia, SC, for Appellant. J. Preston Strom, Jr., United States Attorney, Marvin J. Caughman, Assistant United States Attorney, Shane R. Page, Third-Year Law Student, Columbia, SC, for Appellee.
Before MICHAEL and MOTZ, Circuit Judges, and BUTZNER, Senior Circuit Judge.
OPINION
PER CURIAM:
Wilson Lipscomb pled guilty to distribution of crack cocaine, 21 U.S.C.A. Sec. 841 (West 1981 & Supp.1995). On the government's motion for a downward departure for substantial assistance, USSG Sec. 5K1.1,* the district court departed below the statutory minimum sentence of ten years and sentenced Lipscomb to 97 months imprisonment. Lipscomb appeals his sentence, alleging that the district court erred in determining the extent of the downward departure by using a formula rather than making an individualized evaluation of Lipscomb's assistance. We dismiss for lack of jurisdiction.
Under 18 U.S.C.A. Sec. 3742(a) (West 1985 & Supp.1995), a defendant may appeal a sentence which was (1) imposed in violation of law, (2) imposed as a result of an incorrect application of the sentencing guidelines, (3) was greater than the sentence indicated in the applicable guideline range, or (4) was imposed for an offense for which there was no sentencing guideline and is plainly unreasonable. When the district court departs below the guideline range, a defendant may not appeal the extent of the downward departure, because the degree of a departure is a decision within the discretion of the district court. See, e.g., United States v. Hazel, 928 F.2d 420, 424 (D.C.Cir.1991) (methodology and justifications for degree of downward departure not reviewable); United States v. Doe, 996 F.2d 606, 607 (2d Cir.1993) (citing cases).
We therefore dismiss the appeal. 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.
DISMISSED
United States Sentencing Commission, Guidelines Manual (Nov.1994)