                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.
                                                 No. 02-4218
ANGEL FUENTES, a/k/a Luis A.
Cortes, a/k/a Shorty,
                Defendant-Appellant.
                                       
            Appeal from the United States District Court
     for the Southern District of West Virginia, at Charleston.
             Charles H. Haden II, Chief District Judge.
                            (CR-99-12)

                  Submitted: September 27, 2002

                      Decided: November 6, 2002

 Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                             COUNSEL

Carl J. Roncaglione, Jr., Charleston, West Virginia, for Appellant.
Kasey Warner, United States Attorney, Monica K. Schwartz, Assis-
tant United States Attorney, Charleston, West Virginia, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                      UNITED STATES v. FUENTES
                              OPINION

PER CURIAM:

   Angel Fuentes was originally sentenced in 1999 as a career
offender to a term of 292 months imprisonment for his participation
in a conspiracy to distribute cocaine, crack, and marijuana. No spe-
cific drug quantities were charged in the indictment. While Fuentes’
appeal was pending, the Supreme Court decided Apprendi v. New Jer-
sey, 530 U.S. 466, 490 (2000) (holding that any fact, other than a
prior conviction, "that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury and proved
beyond a reasonable doubt"). We affirmed Fuentes’ sentence in part,
but remanded for resentencing in accordance with Apprendi. See
United States v. Fuentes, No. 99-4756 (4th Cir. Jan. 18, 2002)
(unpublished).

   Before Fuentes was resentenced, the government filed a Rule 35(b)
motion for reduction of sentence based on his post-sentencing sub-
stantial assistance. Fuentes had received a three-level adjustment for
acceptance of responsibility at his initial sentencing. At the resentenc-
ing hearing, Fuentes’ attorney asked the district court to make a
downward departure from offense level 32 to offense level 29 before
it considered the Rule 35(b) motion so as to give Fuentes a noticeable
benefit for his acceptance of responsibility. Fuentes’ offense level was
actually 35, but he urged the court to start at level 32 because, with
criminal history category VI, it would yield a range of 210-262
months, roughly corresponding to the 240-month statutory maximum.
The district court declined to make such a departure. The court did,
however, depart pursuant to the Rule 35(b) motion, from offense level
35 to offense level 29, and imposed a sentence of 151 months impris-
onment.

   When the sentencing court departs downward, the appeals court
lacks jurisdiction to review the court’s decision to depart further on
different grounds. United States v. Patterson, 38 F.3d 139, 146 (4th
Cir. 1994). Moreover, a defendant may not appeal the extent of a
downward departure unless the departure decision resulted in a viola-
tion of law or resulted from an incorrect application of the guidelines.
United States v. Hill, 70 F.3d 321, 324-25 (4th Cir. 1995). Fuentes
                      UNITED STATES v. FUENTES                        3
argues that the district court misinterpreted and misapplied the guide-
lines in making its Rule 35(b) departure and that this court thus has
jurisdiction to review his sentence.

   Fuentes first argues that the court’s method of departing deprived
him of any benefit from his acceptance of responsibility, citing United
States v. Rodriguez, 64 F.3d 638, 643 (11th Cir. 1995) (holding that
district court may depart downward from statutory maximum for
acceptance of responsibility when § 5G1.1(a) "renders § 3E1.1 inef-
fectual" in reducing the sentence). The reasoning in Rodriguez has not
been adopted in this circuit. While the sentencing court may depart
for any factor that is not a forbidden ground for departure under the
guidelines, a factor that is designated as a basis for reduction under
the guidelines is a discouraged factor for departure. United States v.
Hairston, 96 F.3d 102, 107 (4th Cir. 1996). The court may depart
based on a discouraged factor only if it is "present to such a degree
that it cannot be characterized as typical or ‘usual.’" Id. at 108. Such
departures are intended to be rare. Id. at 107.

   Here, the district court did not misinterpret or misapply the guide-
lines in refusing to depart for acceptance of responsibility. Fuentes
had received the full benefit of his acceptance of responsibility when
his offense level was originally reduced from 38 to 35. After
Apprendi, his guideline range was effectively reduced under U.S. Sen-
tencing Guidelines Manual § 5G1.1(a) (2001) from 292-365 months
to 240 months. However, neither USSG § 3E1.1 nor USSG
§ 5G1.1(a) provide any mechanism for a further reduction below a
statutory maximum sentence to reflect the defendant’s acceptance of
responsibility when his guideline range is higher than the statutory
maximum. Arguably, under Rodriguez, the district court had discre-
tion to depart on that basis, but its decision not to depart cannot be
characterized as a misinterpretation or misapplication of the guide-
lines. Cf. United States v. Houser, 70 F.3d 87, 91 (11th Cir. 1995)
(not error to apply role adjustment that brought defendants’ offense
levels to 46, three levels above highest offense level of 43, which ren-
dered their three-level adjustments for acceptance of responsibility
valueless); United States v. Caceda, 990 F.2d 707, 710 (2d Cir. 1993)
(same).

   United States v. Head, 178 F.3d 1205, 1208 (11th Cir. 1999), also
cited by Fuentes, is inapposite, because it deals with a departure
4                      UNITED STATES v. FUENTES
below a mandatory minimum sentence where the high point of the
guideline range is lower than the minimum sentence, a different issue
from the one presented here. Both Head and United States v. Pillow,
191 F.3d 403, 407-08 (4th Cir. 1999), hold that the starting point for
a substantial assistance departure is the mandatory minimum sentence
rather than a lower guideline range. However, these decisions provide
no guidance in this case.

   Fuentes also asserts that the district court erred by beginning the
departure at offense level 35, rather than 32, because the district court
could not impose any sentence above 240 months and thus the portion
of the departure which reduced his offense level from 35 (range 292-
365 months) to 32 (range 210-262 months) was a nullity.

   Guideline section 5K1.1, p.s., provides that, if the government
moves for a departure based on the defendant’s substantial assistance,
"the court may depart from the guidelines." The guidelines do not
instruct the court how to structure the departure. There is thus no rea-
son why the district court may not, without transgressing the guide-
lines, structure its departure by reducing the defendant’s offense level
to a point which produces a guideline range below the statutory maxi-
mum and imposing sentence within the new guideline range.

   Alternatively, Fuentes argues that the district court should have
used offense level 32 as a starting point for the departure because that
is the base offense level that applies to a career offender whose
offense carries a statutory maximum sentence of 20-25 years, as his
does.* However, he fails to note that USSG § 4B1.1 directs the sen-
tencing court to apply the base offense level from the table in § 4B1.1
only if it is greater than the offense level otherwise applicable, which
was not true in this case. Fuentes’ base offense level was correctly
calculated by considering the total quantity of drugs that were includ-
able in his relevant conduct, and that calculation gave him a base
offense level of 38. In this respect also, we are not persuaded that the
district court erred in resentencing him as it did.

  *Fuentes did not receive any enhancements or upward adjustments to
his base offense level at his initial sentencing.
                     UNITED STATES v. FUENTES                      5
   We therefore affirm the sentence imposed by the district court. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

                                                        AFFIRMED
