United States of America, Plaintiff-appellee, v. Rodney Tynell Patrick, Defendant-appellant, 51 F.3d 269 (4th Cir. 1995)

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U.S. Court of Appeals for the Fourth Circuit - 51 F.3d 269 (4th Cir. 1995) Submitted March 15, 1995. Decided April 6, 1995

IN PART AND DISMISSED IN PART.

Robert A. FORD, TUGGLE, DUGGINS & MESCHAN, P.A., Greensboro, NC, for Appellant. Walter C. Holton, Jr., United States Attorney, John W. Stone, Jr., Assistant United States Attorney, Greensboro, NC, for Appellee.

Before RUSSELL and WILLIAMS, Circuit Judges, and CHAPMAN, Senior Circuit Judge.

OPINION

PER CURIAM:


Rodney Tynell Patrick entered a guilty plea to one count of bank robbery, 18 U.S.C.A. Sec. 2113(a) (West Supp.1994), and was sentenced to a term of 151 months. He appeals this sentence, contending that the district court erred in sentencing him as a career offender, United States Sentencing Commission, Guidelines Manual, Sec. 4B1.1 (Nov.1993), and in declining to depart downward on the grounds of health and duress. We affirm in part and dismiss in part.

A defendant is a career offender if he is over age eighteen at the time of the instant offense, the instant offense is a felony which is a crime of violence or a controlled substance offense, and he has two prior felony convictions for either a crime of violence or a controlled substance offense. USSG Sec. 4B1.1. Patrick argues that his two prior felony convictions for sale and delivery of cocaine should be considered related cases and treated as one. See USSG Secs. 4B1.2(3), 4A1.2(a) (2), comment. (n.3). Patrick's two convictions were consolidated for sentencing after the second conviction when his community control sentence for the first offense was revoked. Because Patrick was arrested for the first offense before he committed the second offense, the cases were not related, and he was correctly sentenced as a career offender.

The record discloses that the district court understood its authority to depart on the grounds urged by Patrick and decided that a departure was not appropriate. The court's decision not to depart is not reviewable on appeal. United States v. Bayerle, 898 F.2d 28 (4th Cir.), cert. denied, 498 U.S. 819 (1990).

We therefore affirm the sentence. That portion of the appeal which contests the district court's decision not to depart is dismissed. 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 IN PART, DISMISSED IN PART.