United States of America, Plaintiff-appellee, v. Robert Roosevelt Miller, Jr., Defendant-appellant, 9 F.3d 1545 (4th Cir. 1993)
Annotate this CaseAppeal from the United States District Court for the Middle District of North Carolina, at Greensboro.
Thomas H. Johnson, Jr., Greensboro, North Carolina, for Appellant.
Benjamin H. White, Jr., United States Attorney, Sandra J. Hairston, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.
M.D.N.C.
DISMISSED.
Before ERVIN, Chief Judge, and PHILLIPS and WILKINSON, Circuit Judges.
PER CURIAM:
OPINION
Robert Roosevelt Miller, Jr., entered a guilty plea to bank robbery, 18 U.S.C.A. § 2113(a) (West Supp. 1993), and received a sentence of 156 months. He appeals his sentence, asserting that the district court erred in refusing to depart on the ground that criminal history category VI overstated his past criminal conduct. United States Sentencing Commission, Guidelines Manual, § 4A1.3, p.s. (Nov. 1992). We dismiss the appeal for lack of jurisdiction.
Miller had a total of twenty-three criminal history points. In the district court, he did not contest the accuracy of the criminal history computation, but argued that a departure was called for because his crimes resulted from his alcoholism. After a thorough inquiry into possible grounds for a departure, the district court decided not to depart under section 4A1.3.* A failure to depart is not appealable. United States v. Bayerle, 898 F.2d 28 (4th Cir.), cert. denied, 498 U.S. 819 (1990).
The appeal is therefore 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.
DISMISSED
*The probation officer recommended a career offender sentence. U.S.S.G. § 4B1.1. Although Miller did not contest his career offender status, the district court did not increase his offense level to that required for a career offender sentence, and thus departed, in effect, to a lower guideline range. The government has not alleged error in this regard.
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