Notice: Fourth Circuit Local Rule 36(c) States That Citation of Unpublished Dispositions is Disfavored Except for Establishing Res Judicata, Estoppel, or the Law of the Case and Requires Service of Copies of Cited Unpublished Dispositions of the Fourth Circuit.united States of America, Plaintiff-appellee, v. Leonard H. Mitchell, Defendant-appellant, 103 F.3d 121 (4th Cir. 1996)

Leonard H. Mitchell was convicted of possessing a firearm while being a convicted felon, 18 U.S.C.A. § 922(g) (1) (West Supp.1996), and was sentenced as an armed career offender. 18 U.S.C.A. § 924(e) (West Supp.1996). He seeks to appeal his 265-month sentence, contending that the district court abused its discretion by refusing to depart downward because of his age (42) and the difference between the armed career offender sentence and the guideline range which would have applied were he not a career offender.

A sentencing court's discretionary decision not to depart from the guideline range is not subject to appellate review. United States v. Bayerle, 898 F.2d 28, 31 (4th Cir.), cert. denied, 498 U.S. 819 (1990). However, if the court bases its decision not to depart on a perceived lack of legal authority, its decision is a legal one which is reviewed de novo. United States v. Hall, 977 F.2d 861, 863 (4th Cir. 1992). Here, the district court stated its belief that a departure was not appropriate and, in any case, would not be upheld on the grounds urged. The court expressed no desire to depart. We find that the court exercised its discretion in deciding not to depart.

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.