UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 99-4684

DAVID ALAN HARVEY,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
Frank W. Bullock, Jr., District Judge.
(CR-99-7)

Submitted: May 10, 2000

Decided: May 19, 2000

Before LUTTIG and WILLIAMS, Circuit Judges,
and HAMILTON, Senior Circuit Judge.

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Dismissed by unpublished per curiam opinion.

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COUNSEL

M. Gordon Widenhouse, Jr., Chapel Hill, North Carolina, for Appel-
lant. Walter C. Holton, Jr., United States Attorney, L. Patrick Auld,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

David Alan Harvey appeals the sixty-three-month sentence
imposed by the district court after he pled guilty to armed bank rob-
bery, 18 U.S.C.A. § 2113(d) (West Supp. 2000), and attempted armed
robbery, 18 U.S.C.A. § 2113(c) (West Supp. 2000). Harvey contends
that the district court failed to recognize its authority to depart down-
ward for diminished capacity, aberrant behavior, post-offense rehabil-
itation, and substantial restitution. We dismiss the appeal for lack of
jurisdiction.

In 1996, Harvey's doctor prescribed Demerol and Seconal for fre-
quent migraine headaches. By 1998, Harvey was addicted to these
medications, and was obtaining large quantities of them from two
doctors and emergency room visits. On December 24, 1998, Harvey
robbed a pharmacy with a BB gun, taking Demerol and Seconal.* On
December 26, 1998, he robbed a Phar-Mor pharmacy of Demerol and
Seconal. On December 31, 1998, Harvey was fired from his job as
sales manager at a car dealership because he was under the influence
of medication and unable to perform his duties. The same day, he
robbed a bank of $169,700. Harvey was arrested a few days later. All
but $20,150 of the money stolen from the bank was recovered. By the
date of sentencing, Harvey had repaid the loss to Phar-Mor and
$15,000 to the bank, but still owed the bank $5000.

Harvey requested a departure based on aberrant conduct, dimin-
ished capacity, post-offense rehabilitation, and substantial restitution,
as well as his "extraordinary cooperation with authorities and accep-
tance of responsibility . . . his education, vocational skills, work his-
tory, and family responsibilities, and the unlikelihood this conduct
would ever recur."
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*This conduct was not charged or treated as relevant conduct.

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At the sentencing hearing, the district court initially observed that
it did not believe that it had discretion to depart downward on the
grounds urged by Harvey because the facts did not warrant a depar-
ture. The court expressed sympathy for Harvey, and stated that if it
had discretion to depart, it might do so. However, after hearing argu-
ment, the district court stated:

          I don't believe, as a legal and factual matter under the facts
          of this case, that the arguments you have made give the
          Court a legal basis to depart below the guideline. That is, I
          recognize that under certain circumstances you can depart
          for each of these three grounds.

          I don't find any support for finding that the acts in this case
          -- that is, the bank robbery, the robbery of the pharmacy,
          and possibly the other pharmacy robbery, or attempted rob-
          bery, for that matter -- are such that you would be entitled
          to depart [sic] for an aberrant act, for diminished capacity,
          or for the extraordinary acceptance of responsibility after
          these acts had been committed. That is, individually and in
          combination, I still don't find that these facts would allow
          the Court to have the discretion to do that as a matter of fact
          and as a matter of law.

          So I am not refusing to exercise my discretion in this matter.
          I am simply finding that under the facts and circumstances
          of the case, the facts and the law do not permit a departure.

The appeals court "lacks authority to review a decision of the dis-
trict court not to depart from the applicable guideline range when that
decision rests upon a determination that a departure is not warranted."
United States v. Brock, 108 F.3d 31, 33 (4th Cir. 1997) (citing United
States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir. 1990)). However, if the
court decides not to depart because it believes it lacks legal authority
to depart, the court of appeals may review that decision. See Brock,
108 F.3d at 33. The Supreme Court has explained that any factor that
is not forbidden as a possible ground for departure under the guide-
lines may permit a departure, if "the factor, as occurring in the partic-
ular circumstances, takes the case outside the heartland of the

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applicable Guideline." Koon v. United States , 518 U.S. 81, 109
(1996).

In Brock, this Court listed the forbidden factors:

          [D]rug or alcohol dependence or abuse (U.S.S.G. § 5h1.4,
          p.s.); race, sex, national origin, creed, religion, or socioeco-
          nomic status (U.S.S.G. § 5H1.10, p.s.); lack of youthful
          guidance or similar circumstances indicating a disadvan-
          taged upbringing (U.S.S.G. § 5H1.12, p.s.).

108 F.3d at 33.

In this case, the district court correctly decided that Harvey's drug
addiction was not a permissible ground for departure. In light of Koon
and Brock, the court could not have been in doubt about its authority
to depart on the non-forbidden grounds put forward by Harvey, if the
factor was present to an exceptional degree or otherwise made the
case an atypical one. See Brock, 108 F.3d at 35. The court determined
that the facts did not justify a departure and decided not to depart.
When the district court finds factors that might, if the facts were dif-
ferent, support a departure, but do not support a departure in the case
under consideration, the appeals court lacks authority to review the
decision. See United States v. DeBeir, 186 F.3d 561, 573 (4th Cir.
1999).

We therefore dismiss the appeal for lack of jurisdiction. 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.

DISMISSED

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