United States of America, Plaintiff-appellee, v. Terry Kyle, A/k/a Back-eye, Defendant-appellant, 944 F.2d 902 (4th Cir. 1991)

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US Court of Appeals for the Fourth Circuit - 944 F.2d 902 (4th Cir. 1991) Submitted July 1, 1991. Decided Sept. 23, 1991

Appeal from the United States District Court for the Southern District of West Virginia, at Beckley. Elizabeth V. Hallanan, District Judge. (CR-90-89)

H.L. Kirkpatrick, Ashworth & Kirkpatrick, Beckley, W.Va., for appellant.

Michael W. Carey, United States Attorney, Michael M. Fisher, Assistant United States Attorney, Charleston, W.Va., for appellees.

S.D.W. Va.


Before SPROUSE, WILKINS and NIEMEYER, Circuit Judges.



Terry Kyle pled guilty to interstate travel in aid of racketeering (18 U.S.C. § 1952(a) (3)) and appeals the guideline sentence which was imposed. We affirm.

At his sentencing, Kyle requested a downward departure from criminal history category II to category I on the ground that he had only one prior conviction which occurred seven years before, which resulted in a criminal record allegedly less serious than most defendants in criminal history category II. The district court declined to depart. On appeal, Kyle argues that the district court should have departed. We have previously held that a decision not to depart is not reviewable. United States v. Bayerle, 898 F.2d 28 (4th Cir.), cert. denied, 59 U.S.L.W. 3244 (U.S.1990).

Accordingly, we 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.fn* In light of our view of the merits of this appeal the government's motion to dismiss the appeal is moot.