United States of America, Plaintiff-appellee, v. Terry M. Bardwell, Defendant-appellant, 956 F.2d 1163 (4th Cir. 1992)

Terry M. Bardwell was convicted by a jury of conspiracy to distribute phencyclidine (PCP) and distribution of PCP. He later cooperated with the government and his sentence was eventually reduced on the government's motion for a departure due to substantial assistance. Bardwell contends in this appeal that the district court erred in refusing to consider his rehabilitative efforts in determining the extent of the departure. We affirm.

A motion for a downward departure under U.S.S.G. § 5K1.1 is committed to the discretion of the district court, and we review its decision under the abuse of discretion standard. In this case, Bardwell claims that the district court did not understand its authority to depart on the basis of his efforts and achievements since his incarceration. The record discloses that the district court found that it might have authority to consider factors apart from the value of Bardwell's cooperation in deciding the extent of its departure, but that it found no other factor present which warranted departure. The court correctly viewed post-offense conduct such as rehabilitation as not providing a basis for departure. See United States v. Van Dyke, 895 F.2d 984 (4th Cir.), cert. denied, 59 U.S.L.W. 3246 (U.S.1990). Under these circumstances, we find that the court did not abuse its discretion in departing only to the extent requested by the government based on Bardwell's cooperation.

Accordingly, the judgment of the district court is affirmed. 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.