United States v. Mitchell ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4822
SEAN GREGORY MITCHELL,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Robert G. Doumar, Senior District Judge.
(CR-97-18)
Submitted: June 30, 1998
Decided: July 28, 1998
Before WILKINS, LUTTIG, and WILLIAMS, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Sydney K. L. West, HORNE, WEST & MCMURTRIE, P.C.,
Gloucester, Virginia, for Appellant. Helen F. Fahey, United States
Attorney, Dana O. Washington, Special Assistant United States Attor-
ney, Norfolk, Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Sean Gregory Mitchell pled guilty to being a felon in possession
of a firearm, 18 U.S.C.A. § 922(g)(1) (West Supp. 1998), and was
sentenced to a term of 70 months imprisonment. He appeals this sen-
tence, contending that the district court erred in determining that it
lacked authority to depart below the guideline range of 70-87 months.
We affirm.
Mitchell was arrested during a drug raid. He was carrying a loaded
pistol which had been stolen two weeks earlier. He presented three
grounds for departure in the district court. First, defense counsel
claimed that there were mitigating circumstances in Mitchell's back-
ground and surrounding his offense which warranted departure. The
exact nature of these circumstances was never spelled out, either in
Mitchell's motion for a departure or at the sentencing hearing. Mitch-
ell's appeal brief is equally reticent, referring only to "factors brought
forth during the course of the sentencing, both in the presentence
report and as presented at the hearing." Second, Mitchell requested a
departure under USSG § 4A1.3, p.s.,1 arguing that his criminal history
was overstated because his two unlawful wounding convictions
resulted from attempts to defend his guardian from an abusive ex-
boyfriend. Last, he argued that a sentence within the guideline range
would be disproportionate because his co-defendants received lighter
sentences in state court.2 The district court expressed displeasure with
the severity of the guideline sentence but found that the facts did not
warrant a departure.
A district court's discretionary refusal to depart is not reviewable
on appeal, see United States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir.
1990), but a decision based on the district court's perceived lack of
legal authority to depart is reviewable. See United States v. Hall, 977
F.2d 861, 863 (4th Cir. 1992). In this case, the record discloses no
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1 U.S. Sentencing Guidelines Manual (1995).
2 The government represented that Mitchell was prosecuted in federal
court because he was in possession of a firearm which had been stolen
from a federally registered gun dealer.
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uncertainty on the part of the district court as to its authority to depart
for overstated criminal history under USSG § 4A1.3. The court found
no basis for departure in the facts of the case. Any disparity between
Mitchell's sentence and those of his co-defendants did not provide a
basis for departure, see United States v. Withers, 100 F.3d 1142, 1149
(4th Cir. 1996), cert. denied, ___ U.S. ___, 65 U.S.L.W. 3631 (U.S.
Mar. 17, 1997) (No. 96-7884); Hall, 977 F.2d at 864, and thus the
court's refusal to depart on this ground could not be error. Mitchell
presented no argument concerning mitigating circumstances and none
are apparent in the presentence report. Therefore, we cannot say that
the court misunderstood its authority to depart on this ground. Conse-
quently, we find that the district court's decision not to depart was not
the result of an erroneous belief that it lacked authority to depart on
any of the grounds Mitchell put forth.
Accordingly, we affirm the sentence. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
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