United States of America, Plaintiff-appellee, v. Troy Pelts, A/k/a James Lee Start, Defendant-appellant, 12 F.3d 206 (4th Cir. 1993)

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US Court of Appeals for the Fourth Circuit - 12 F.3d 206 (4th Cir. 1993) Submitted: October 25, 1993. Decided: November 17, 1993

Appeal from the United States District Court for the Middle District of North Carolina, at Winston-Salem.

Thomas H. Johnson, Jr., for Appellant.

Benjamin H. White, Jr., United States Attorney, Paul A. Weinman, Assistant United States Attorney, for Appellee.



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



Troy Pelts entered a guilty plea to one count of conspiracy to distribute more than fifty grams of cocaine base (crack) in violation of 21 U.S.C.A. Sec. 846 (West Supp. 1993), and one count of possession of cocaine base with intent to distribute in violation of 21 U.S.C.A. Sec. 841 (West 1981 & Supp. 1993), 18 U.S.C.Sec. 2 (1988). He appeals his career offender sentence on the ground that the district court erred in failing to depart for overstated criminal history. United States Sentencing Commission, Guidelines Manual, Sec. 4A1.3, p.s. (Nov. 1992). We dismiss the appeal for lack of jurisdiction.

Pelts had twelve criminal history points. His prior criminal conduct included state convictions for attempted robbery and possession of cocaine base for sale, which made him a career offender. U.S.S.G. Sec. 4B1.1. After considering defense counsel's argument for a downward departure, the district court found that criminal history category VI did not significantly overstate his past criminal conduct. The court declined to depart. A failure to depart is not appealable. United States v. Bayerle, 898 F.2d 28 (4th Cir.), cert. denied, 498 U.S. 819 (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.