UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 96-4178

ROBERT JEROME MURCHISON,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
Frank W. Bullock, Jr., Chief District Judge.
(CR-94-89)

Submitted: August 20, 1996

Decided: September 12, 1996

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

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Walter T. Johnson, Jr., Greensboro, North Carolina, for Appellant.
Walter C. Holton, Jr., United States Attorney, Paul Alexander Wein-
man, Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

A grand jury charged Robert Jerome Murchison with one count of
conspiracy to possess more than fifty grams of cocaine base "crack"
and more than fifty grams of cocaine hydrochloride in violation of 21
U.S.C. § 846 (1988) and 21 U.S.C. § 841(b)(1)(a), and he pled not
guilty. Three months later, the Government filed a two-count super-
seding information which charged Murchison with possession with
intent to distribute 47.2 grams of cocaine hydrochloride in violation
of 21 U.S.C. §§ 841(a)(1), (b)(1)(c), and possession with intent to dis-
tribute 15.6 grams of cocaine base "crack" in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(b). He pled guilty to both of those counts pursu-
ant to a plea agreement. The district court sentenced Murchison to
188 months' imprisonment and five years' supervised release.

On appeal, Murchison challenges the district court's calculation of
his base offense level under the Federal Sentencing Guidelines. Either
the defendant or the Government may appeal a sentence on the
ground that it was the result of an incorrect application of the guide-
lines. 18 U.S.C.A. § 3742 (West 1985 & Supp. 1996). However, we
give due deference to the sentencing court's application of the guide-
lines to the facts. § 3742(e). When the issue is primarily a factual
determination, we apply the clearly erroneous standard, and when the
issue is more purely legal, we conduct de novo review. United States
v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989).

Murchison first relies on the common scheme rule, accountability
of co-conspirators, and approximation cases to support his assertion
that the district court erred in calculating the drug amount attributable
to him. However, the district court determined the quantity of drugs
attributed to him according to the superseding information, which
specified the amount of drugs found hidden in various compartments
of Murchison's car during a traffic stop. The district court did not

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determine the quantities based on a common scheme, a co-conspiracy,
or approximation. Thus, this argument is misplaced.

Furthermore, Murchison pled guilty to the charges in the supersed-
ing information and a valid guilty plea constitutes admission of the
material elements of the crime. McCarthy v. United States, 394 U.S.
459, 466 (1969). In addition, a failure to object to an error in the sen-
tence calculation at the sentencing hearing results in forfeiture of the
right to appeal that issue. United States v. Grubb, 11 F.3d 426, 440
(4th Cir. 1993). Even so, plain error affecting a substantial right may
be reviewed for the first time on appeal if the error seriously affects
fairness, integrity, or the public reputation of the judicial proceedings.
United States v. Olano, 507 U.S. 725, 732 (1993); United States v.
Fant, 974 F.2d 559, 565 (4th Cir. 1992). The amount attributed to
Murchison was not plainly erroneous. Thus, his failure to object and
his guilty plea waived any right to appeal the issue.

Murchison next argues that the pre-sentence report overstates his
criminal history with respect to his career offender status. The report
reveals that over a ten-month period, Murchison was arrested four
separate times and charged with nine offenses. All of the offenses
were disposed of by the court on the same day, and each case received
a separate sentence that ran concurrently. However, the cases were
not consolidated. Murchison argues that the state court considered
these incidents as one offense, and that it is therefore fundamentally
unfair for the district court to consider the incidents separately for
sentencing purposes.

Prior sentences imposed in related cases are treated as one case in
assigning criminal history points. USSG § 4A1.2(a)(2). However,
related cases are those in which there is no intervening arrest and the
offenses (1) occurred on a single occasion, (2) were part of a single
common scheme or plan, or (3) were consolidated for trial or sentenc-
ing. USSG § 4A1.2, comment. (n.3). Murchison was arrested on four
separate occasions, thereby making the four arrests separate offenses.
Further, the district court had the discretion to depart downward from
the guidelines had it believed the offense level overstated the criminal
history. United States v. Adkins, 937 F.2d 947, 952 (4th Cir. 1991);
United States v. Summers, 893 F.2d 63, 67 (4th Cir. 1990). The dis-
trict court heard argument at the sentencing hearing on the issue but

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decided not to depart downward. We do not review a district court's
refusal to depart, United States v. Bayerle, 898 F.2d 28, 30-31 (4th
Cir.), cert. denied, 498 U.S. 819 (1990), unless the decision is based
on a mistaken perception of lack of authority. United States v. Hall,
977 F.2d 861, 863 (4th Cir. 1992). The district judge indicated he
knew he had the authority to depart but chose not to do so in this cir-
cumstance. Thus, this argument is also meritless.

Because we find no error in the district court's application of the
Federal Sentencing Guidelines, the judgment of the district court, sen-
tencing Murchison to 188 months' imprisonment and five years'
supervised release, is affirmed. 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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