UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                  No. 97-4920

JEFFREY SMITH,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-97-263)

Submitted: May 19, 1998

Decided: June 5, 1998

Before WIDENER and HAMILTON, Circuit Judges, and
HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Gregory Bruce English, ENGLISH & SMITH, Alexandria, Virginia,
for Appellant. Helen F. Fahey, United States Attorney, Marlene M.
Wahowiak, Special Assistant United States Attorney, Alexandria,
Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Smith appeals his conviction and sentence for conspiracy to pos-
sess with the intent to distribute marijuana in violation of 21 U.S.C.
§ 846 (1994), possession with intent to distribute marijuana in viola-
tion of 21 U.S.C. § 841(a)(l) (1994), introduction of marijuana into a
penal institution in violation of 22 D.C. Code Ann.§ 2603 (1996) and
18 U.S.C. § 2 (1994), and possession of marijuana in violation of 18
U.S.C.A. § 13 (West 1994 & Supp. 1998), assimilating Va. Code
Ann. § 53.1-203(6) (Michie 1994). On appeal, Smith claims that the
trial court erred in not allowing him to "assert the defense of duress"
and in not granting a downward departure at sentencing. Finding no
error, we affirm.

The trial court, after determining that Smith as a matter of law had
not established a duress defense, stated that it would not be giving a
duress instruction. Smith then waived a jury trial, and the court found
him guilty on all counts. Smith now claims that the district court erred
in refusing his duress instruction.

We review de novo Smith's claim that the district court erred in
refusing to give his proffered instruction. See United States v. Singh,
54 F.3d 1182, 1189 (4th Cir. 1995). To establish a defense of duress,
a defendant must show the following: (1) that he acted under an
immediate threat of serious bodily injury; (2) that he had a well-
grounded belief that the threat would be carried out; and (3) that he
had no reasonable opportunity to avoid violating the law and the
threatened harm. See United States v. King, 879 F.2d 137, 139 (4th
Cir. 1989).

We find that the district court did not err in determining, as a mat-
ter of law, that Smith did not proffer sufficient evidence of the ele-
ments of the duress defense to warrant a jury instruction. First, the

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record, including Smith's testimony, indicates that at least a day
passed between the alleged threat and the drug possession. This and
other evidence leads us to conclude that the district court did not err
in determining that Smith failed to establish that any alleged threat of
serious bodily injury was imminent.* Additionally, the record indi-
cates that Smith had more than a reasonable amount of time to escape
death or serious bodily injury or to notify the authorities and request
segregation. Therefore, because Smith failed to establish that he was
entitled to the duress defense, we conclude that the district court did
not err in deciding not to give the duress defense instruction.

Next, Smith contends that the district court erred in refusing to
grant a downward departure based on his claim of duress and his sta-
tus as a deportable alien. Smith's counsel argued for a departure on
these bases at sentencing, and the court denied the request finding that
Smith did not demonstrate sufficient justification.

The denial of a request for a downward departure is reviewable
only if the district court mistakenly believed that it lacked the author-
ity to depart. See United States v. Underwood , 970 F.2d 1336, 1338
(4th Cir. 1992). The record reflects that the district court was aware
of its authority to depart but chose not to depart after considering the
arguments of counsel for both parties. Therefore, Smith's sentence
within the guidelines range is not reviewable. See Underwood, 970
F.2d at 1338.

Accordingly, we affirm Smith's conviction and sentence. We dis-
pense 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
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*The case of United States v. Riffe, 28 F.3d 565 (6th Cir. 1994), upon
which Smith relies, does not address this prong of the test. It only found
that the district court erred by applying as a per se rule the requirement
that the prisoner seek protection from prison officials. Id. at 569.

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