United States of America, Plaintiff-appellee, v. Lenardo Ormsby, Defendant-appellant, 10 F.3d 807 (4th Cir. 1993)

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US Court of Appeals for the Fourth Circuit - 10 F.3d 807 (4th Cir. 1993) Submitted: October 25, 1993. Decided: November 5, 1993

Appeal from the United States District Court for the District of Maryland, at Baltimore.

Versteal D. Kemp, for Appellant.

Gary P. Jordan, United States Attorney, John A. Gephart, Assistant United States Attorney, for Appellee.

D. Md.


Before ERVIN, Chief Judge, and PHILLIPS and WILKINSON, Circuit Judges.



Lenardo Ormsby appeals the forty-one month sentence imposed on his conviction for being found in the United States following deportation for an aggravated felony, in violation of 8 U.S.C.A. Sec. 1326(b) (2) (West Supp. 1993). According to Ormsby, the district court erred in refusing to depart downward based on Ormsby's reliance on erroneous information, contained in a letter from the Immigration and Naturalization Service received before his deportation, that two years was the maximum permissible sentence for a return to the United States after deportation. See United States Sentencing Commission, Guidelines Manual, Sec. 5K2.0 (Nov. 1992) (district court may, in its discretion, depart downward on the basis of factors not adequately considered by the Sentencing Commission).

A district court's refusal to depart downward cannot be reviewed by this Court unless that refusal to depart was based on the district court's erroneous view that it lacked the authority to depart. United States v. Underwood, 970 F.2d 1336, 1338 (4th Cir. 1992); United States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir.), cert. denied, 498 U.S. 819 (1990). In this case, after affirmatively acknowledging its discretion and authority to depart downward under U.S.S.G.Sec. 5K2.0, the district court refused to exercise its discretion and enunciated three reasons for that refusal. Hence, Ormsby's sentence is not appealable.

For the reasons stated herein, we dismiss the instant 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.