956 F2d 1163 United States v. M Bardwell

956 F.2d 1163

UNITED STATES of America, Plaintiff-Appellee,
v.
Terry M. BARDWELL, Defendant-Appellant.

No. 90-5719.

United States Court of Appeals, Fourth Circuit.

Submitted Dec. 26, 1991.
Decided March 5, 1992.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.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 District of Maryland, at Baltimore. Frank A. Kaufman, Senior District Judge. (CR-88-70-K)

Richard C. Bittner, Baltimore, Md., for appellant.

Richard D. Bennett, United States Attorney, E. Thomas Roberts, Assistant United States Attorney, Katharine J. Armentrout, Assistant United States Attorney, Baltimore, Md., for appellee.

D.Md.

AFFIRMED.

Before PHILLIPS and SPROUSE, Circuit Judges, and CHAPMAN, Senior Circuit Judge.

OPINION

PER CURIAM:


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1

Terry M. Bardwell was convicted by a jury of conspiracy to distribute phencyclidine (PCP) and distribution of PCP. He later cooperated with the government and his sentence was eventually reduced on the government's motion for a departure due to substantial assistance. Bardwell contends in this appeal that the district court erred in refusing to consider his rehabilitative efforts in determining the extent of the departure. We affirm.

2

A motion for a downward departure under U.S.S.G. § 5K1.1 is committed to the discretion of the district court, and we review its decision under the abuse of discretion standard. In this case, Bardwell claims that the district court did not understand its authority to depart on the basis of his efforts and achievements since his incarceration. The record discloses that the district court found that it might have authority to consider factors apart from the value of Bardwell's cooperation in deciding the extent of its departure, but that it found no other factor present which warranted departure. The court correctly viewed post-offense conduct such as rehabilitation as not providing a basis for departure. See United States v. Van Dyke, 895 F.2d 984 (4th Cir.), cert. denied, 59 U.S.L.W. 3246 (U.S.1990). Under these circumstances, we find that the court did not abuse its discretion in departing only to the extent requested by the government based on Bardwell's cooperation.

3

Accordingly, the judgment of the district court is affirmed. 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.

4

AFFIRMED.