United States of America, Plaintiff-appellee, v. Renee B. Donald, Defendant-appellant, 966 F.2d 1445 (4th Cir. 1992)

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US Court of Appeals for the Fourth Circuit - 966 F.2d 1445 (4th Cir. 1992) Submitted: June 1, 1992Decided: June 12, 1992

Appeal from the United States District Court for the Eastern District of North Carolina, at Fayetteville. W. Earl Britt, District Judge. (CR-90-64)

William J. Stevens, DEWOLFE, POYNTON & STEVENS, Chicago, Illinois, for Appellant.

Margaret Person Currin, United States Attorney, Thomas W. Dworschak, Special Assistant United States Attorney, Raleigh, North Carolina, for Appellee.

E.D.N.C.

DISMISSED.

Before PHILLIPS, WILKINSON, and LUTTIG, Circuit Judges.

OPINION

PER CURIAM:


Renee B. Donald was convicted of assault causing serious bodily injury (18 U.S.C. § 113(f) (1988)) and carrying a concealed weapon (18 U.S.C. § 13 assimilating N.C. Gen. Stat.s 14-269 (1986)). She appeals her sentence, contending that the district court's failure to depart was a misapplication of the guidelines. We dismiss for lack of jurisdiction.

Donald requested a downward departure from the guideline range on the basis of the victim's conduct. United States Sentencing Commission, Guidelines Manual, § 5K2.10 (Nov. 1991). The district court refused to depart, finding that the victim was not at fault.*  We have previously decided that a district court's decision not to depart from the guideline range is not appealable. United States v. Bayerle, 898 F.2d 28 (4th Cir.), cert. denied, 59 U.S.L.W. 3244 (U.S. 1990).

We therefore dismiss the appeal. 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

 *

We note in passing that the finding that there was no provocation by the victim is not clearly erroneous on this record

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