United States of America, Plaintiff-appellee, v. Alvin Bernard Blackmon, Defendant-appellant, 8 F.3d 821 (4th Cir. 1993)

Alvin Bernard Blackmon appeals the sentence imposed on him following his guilty plea to conspiracy to possess with intent to deliver more than fifty grams of cocaine base and cocaine, 21 U.S.C.A. § 846 (West Supp. 1993). He asserts that the district court erred by considering an improper factor when deciding how far to depart for substantial assistance. United States Sentencing Commission, Guidelines Manual, § 5K1.1 (Nov. 1992). Because we lack jurisdiction to review the extent of a departure in the defendant's favor, we dismiss the appeal.

After his guilty plea, Blackmon cooperated with the government by providing information which earned him a government motion for a substantial assistance departure. However, while free on bond, he was arrested by state authorities outside a crack house and charged with felony possession of cocaine.^*  At his sentencing hearing, the district court asked Blackmon about the circumstances of the state arrest, but discredited Blackmon's exculpatory explanation that he just happened to be in the wrong place at the wrong time. The court then decided to make a smaller departure than it had originally intended.

Blackmon contends that the district court erred in considering his failure to accept responsibility for his post-plea conduct. His argument is misplaced in two ways. First, he received an adjustment for acceptance of responsibility for the offense of which he was convicted. Second, 18 U.S.C.A. § 3742 (West Supp. 1993), does not provide for an appeal by a defendant of a departure below the guideline range. Therefore, we are unable to review the extent of a departure for substantial assistance. See, e.g., United States v. Sharp, 931 F.2d 1310 (8th Cir. 1991); United States v. Pomerleau, 923 F.2d 5 (1st Cir. 1991); United States v. Vizcarra-Angulo, 904 F.2d 22 (9th Cir. 1990); United States v. Erves, 880 F.2d 376, 381-82 (11th Cir.), cert. denied, 493 U.S. 968 (1989).

The appeal is therefore dismissed. 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