United States of America, Plaintiff-appellee, v. John O. Rogers, Defendant-appellant, 989 F.2d 496 (4th Cir. 1993)

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US Court of Appeals for the Fourth Circuit - 989 F.2d 496 (4th Cir. 1993) Submitted: February 25, 1993Decided: March 23, 1993

Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Charles H. Haden, II, Chief District Judge. (CR-91-210)

Jeff Chandler Woods, JACKSON & KELLY, Charleston, West Virginia, for Appellant.

Michael W. Carey, United States Attorney, J. Kirk Brandfass, Assistant United States Attorney, Charleston, West Virginia, for Appellee.

S.D.W. Va.

AFFIRMED.

Before HALL and NIEMEYER, Circuit Judges, and CHAPMAN, Senior Circuit Judge.

PER CURIAM:

OPINION

John O. Rogers appeals from the district court's order imposing a sentence of forty-one months imprisonment, three to five years of supervised release, and a mandatory assessment of fifty dollars, after Rogers pleaded guilty to distributing crack cocaine. Rogers argues on appeal that the district court erred by failing to depart downward from the Federal Sentencing Guidelines when imposing sentence, because he was "entrapped" into obtaining a large quantity of crack cocaine for the government's confidential informant for the purpose of subjecting him to a greater sentence.

Rogers's sentence was well within the guidelines. The district court's refusal to depart downward from the guidelines is not reviewable on appeal.*  United States v. Davis, 915 F.2d 132 (4th Cir. 1990). We therefore affirm 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

 *

We also note that Rogers's "sentencing entrapment" argument has not been recognized by this Court and is also not supported by the facts of this case. See United States v. Calva, 979 F.2d 119 (8th Cir. 1992); United States v. Lenfesty, 923 F.2d 1293 (8th Cir.), cert. denied, 59 U.S.L.W. 3702 (U.S. 1991)

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