United States of America, Plaintiff-appellee, v. Antonio Bullock, Defendant-appellant, 935 F.2d 268 (4th Cir. 1991)

Antonio Bullock was convicted of several drug offenses and, in sentencing him, the district court departed downward because of his age. On the government's appeal of the sentence, this Court vacated the sentence and remanded for resentencing because age is not a proper basis for a downward departure. United States v. Bullock, No. 89-5117 (4th Cir. July 11, 1990). The district court subsequently sentenced Bullock to the low end of the guideline range in spite of Bullock's request for a departure on the ground of diminished capacity under U.S.S.G. Sec. 5K2.13. Bullock again appeals, contending, in essence, that the district court should have departed based on his diminished capacity in the first instance or in resentencing him, and that the district court's departure on an impermissible ground denied him due process.

These contentions are without merit. The arguments Bullock made on resentencing for a departure based on diminished capacity were all made at the first sentencing hearing and rejected by the district court. Indeed, the prior remand by this Court was premised on the fact that the district court relied solely upon the age of the defendant as a basis for departure. On remand, the district court properly adhered to our mandate. Moreover this Court has previously decided that a decision not to depart is not reviewable on appeal. United States v. Bayerle, 898 F.2d 28 (4th Cir.), cert. denied, 59 U.S.L.W. 3244 (U.S.1990). We therefore affirm the judgment of the district court. 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.