United States of America, Plaintiff-appellee, v. Shiron R. Vick, Defendant-appellant, 972 F.2d 344 (4th Cir. 1992)

OPINION

Shiron R. Vick pled guilty to possession of crack cocaine with intent to distribute, 21 U.S.C. § 841 (1988). He appeals the sentence imposed on the grounds that the district court erred in failing to depart below the career offender guideline range,^*  and contends that the record does not show that the court understood its authority to depart. We affirm.

Vick made no objection to the recommendations in the presentence report, but requested a downward departure because of his age (twenty), his having committed at age sixteen and seventeen two prior offenses which caused him to be classified as a career offender, and extraordinary family circumstances-his mother and father have the HIV virus. Both the probation officer and the prosecutor advised the court that a departure could be made for extraordinary family circumstances pursuant to guideline section 5H1.6 if the district court found a departure appropriate. In imposing sentence, the district court stated:

The Court assumes it has the authority to deviate under this section [§ 5H1.6]; but in view of the facts and circumstances in this case, the Court feels it should not deviate.

We have 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). Although Vick urges us to reconsider our holding in Bayerle, we decline to do so. The record in this case discloses that the district court was aware of its authority to depart for factors not adequately considered in the guidelines, and chose not to exercise this authority.

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