United States of America, Plaintiff-appellee, v. Donald Hinkle, Defendant-appellant, 976 F.2d 728 (4th Cir. 1992)

OPINION

Donald Hinkle pled guilty to conspiracy to distribute cocaine (21 U.S.C. § 846 (1988)) and distribution of cocaine to a minor (21 U.S.C. § 859 (1988)). He appeals the sentence imposed, alleging that the district court erred in not departing on the ground that his criminal history category overstated the seriousness of his past criminal conduct. United States Sentencing Commission, Guidelines Manual, § 4A1.3 (Nov. 1991). We dismiss.

Hinkle argued at the sentencing hearing that his prior offenses were of such a minor nature that a downward departure to a lower criminal history category would be justified. The district court found that a departure was not appropriate.

This Court has previously held 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 dismiss the appeal for lack of jurisdiction. 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