United States of America, Plaintiff--appellee, v. Bobbie L. Todd, Defendant-appellant.united States of America, Plaintiff-appellee, v. Bobbie L. Todd, Defendant-appellant, 914 F.2d 250 (4th Cir. 1990)

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US Court of Appeals for the Fourth Circuit - 914 F.2d 250 (4th Cir. 1990) Submitted Sept. 5, 1990. Decided Sept. 20, 1990

Appeals from the United States District Court for the Western District of Virginia, at Roanoke. James C. Turk, Chief District Judge. (CR-89-30-R; CR-89-31-R)

James R. Cromwell, Wilson, Vogel & Creasy, Roanoke, Va., for appellant.

John P. Alderman, United States Attorney, Karen B. Peters, Assistant United States Attorney, Roanoke, Va., for appellee.

W.D. Va.

AFFIRMED.

Before MURNAGHAN, WILKINSON and WILKINS, Circuit Judges.

PER CURIAM:


Bobbie L. Todd pleaded guilty to distribution of cocaine. Application of the Sentencing Guidelines established a range of from ten to sixteen months, and the district judge sentenced Todd to sixteen months.

An appeal has been taken on the grounds that, in a separate activity in the illegal cocaine distribution line, after the offenses giving rise to the federal conviction, Todd was prosecuted by the Commonwealth of Virginia and sentenced by the state court to a term of ten years, with other matters still pending.

Todd asserts that there was error on the part of the district judge in not departing downward. The trial judge did confer considerable benefit on Todd by indicating a state penitentiary as the place of incarceration for the federal crime, thereby achieving a concurrent serving of the federal and state sentences.

Without extensively investigating contours of the rule in United States v. Bayerle, 898 F.2d 28 (4th Cir. 1990), holding that a refusal to depart downward is not reviewable, it is enough to say that, even had the decision whether or not to depart been reviewable, we are satisfied that the refusal to depart was not an abuse of discretion.

The parties have agreed to submission on the written briefs, and we have elected to proceed on that basis. The judgment is

AFFIRMED.