United States of America, Plaintiff-appellee, v. Angelo Williams, Defendant-appellant, 976 F.2d 729 (4th Cir. 1992)

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U.S. Court of Appeals for the Fourth Circuit - 976 F.2d 729 (4th Cir. 1992) Submitted: August 31, 1992Decided: Sept. 16, 1992

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Robert G. Doumar, District Judge. (CR-91-165-N)

George H. Yates, Virginia Beach, Virginia, for Appellant.

Richard Cullen, United States Attorney, Charles D. Griffith, Jr., Assistant United States Attorney, Norfolk, Virginia, for Appellee.

E.D. Va.

AFFIRMED.

Before SPROUSE and WILLIAMS, Circuit Judges, and BUTZNER, Senior Circuit Judge.

PER CURIAM:


OPINION

Angelo Williams appeals the sentence he received on his guilty plea to one count of distributing crack cocaine in violation of 21 U.S.C. § 841 (1988). He contends that the sentencing court erred in failing to depart under guideline section 4A1.3*  on the ground that his criminal history category over-represented the seriousness of his past criminal conduct, and in failing to recognize its authority to depart on this ground. We affirm.

Williams had a lengthy record of minor offenses, including drug offenses, in state court, where he had been treated with great leniency, receiving several substantial sentences which were suspended as well as sentences of unsupervised probation. At the sentencing hearing, the district court expressed frustration with this treatment, which had seemingly misled Williams into thinking he could continue to sell drugs with impunity. Williams requested a downward departure on this ground; however, the district court refused to depart, finding that there was no valid reason to do so, and sentenced Williams to 151 months, the bottom of the applicable guideline range.

The district court's decision not to depart is not in itself reviewable. United States v. Bayerle, 898 F.2d 28 (4th Cir.), cert. denied, 59 U.S.L.W. 3244 (U.S. 1990). Resentencing is required if the district court does not understand its authority to depart. United States v. Wilson, 896 F.2d 856 (4th Cir. 1990). We find no indication here that the district court did not understand its authority to depart under section 4A1.3.

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

 *

United States Sentencing Commission, Guidelines Manual (Nov. 1991)