                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 07-4945



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


KEITH LAMONT MONTGOMERY,

                Defendant - Appellant.


Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. David A. Faber, District
Judge. (2:07-cr-00058)


Submitted:   May 29, 2008                     Decided:   June 3, 2008


Before TRAXLER, GREGORY and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Tim C. Carrico, CARRICO LAW OFFICES, PLLC, Charleston, West
Virginia, for Appellant.      Charles T. Miller, United States
Attorney, Joshua C. Hanks, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Keith Lamont Montgomery appeals his 168-month sentence

after pleading guilty to possession with intent to distribute

cocaine base, in violation of 21 U.S.C.A. § 841 (West 1999 & Supp.

2008).    Montgomery contends the district court erred by failing to

consider a downward departure from his criminal history category.

Finding no error, we affirm.

             Appellate review of a district court’s imposition of a

sentence is for abuse of discretion.     Gall v. United States, 128 S.

Ct. 586, 597 (2007); see also United States v. Pauley, 511 F.3d

468, 473 (4th Cir. 2007).     The appellate court must first ensure

that the district court committed no procedural errors, such as

“failing to calculate (or improperly calculating) the Guidelines

range, treating the Guidelines as mandatory, failing to consider

the 18 U.S.C.[A.] § 3553(a) [(West 2000 & Supp. 2008)] factors,

selecting a sentence based on clearly erroneous facts, or failing

to adequately explain the chosen sentence—including an explanation

for any deviation from the Guidelines range.”     Gall, 128 S. Ct. at

597.     A sentencing court’s decision not to depart downward is not

reviewable on appeal unless the district court’s decision resulted

from a mistaken belief that it lacked the legal authority to

depart.     United States v. Brewer, 520 F.3d 367, 371 (4th Cir.

2008).




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            In response to the pre-sentence report and the probation

officer’s recommendation that he be sentenced as a career offender,

Montgomery asserted that a variance was warranted based on the 18

U.S.C.A. § 3553(a) factors. At sentencing, Montgomery conceded the

calculation of his Guidelines range was correct, but contended that

his classification as a career offender overstated his criminal

history and that a sentence within the Guidelines range would be

unreasonable.    While the district court considered and denied his

request for a variance sentence based on his criminal history,

Montgomery claims on appeal that the district court failed to

consider whether he was entitled to a downward departure on the

same   ground,   pursuant   to    U.S.   Sentencing   Guidelines   Manual

§ 4A1.3(b)(3)(A) (2006).     However, Montgomery’s objection to the

pre-sentence report noted only that he would request a variance

sentence, and during the sentencing hearing, Montgomery never asked

the court to consider a downward departure from his criminal

history category.    See Fed. R. Crim. P. 32(i)(3)(A) (sentencing

court “may accept any undisputed portion of the presentence report

as a finding of fact”).          Because Montgomery conceded that his

Guidelines range was correctly calculated and made no specific

request for the district court to consider a downward departure,

the district court committed no error in the determination of his

sentence.




                                   - 3 -
          Accordingly,   we   affirm    Montgomery’s   sentence.   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




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