                        UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                       No. 02-4597
NORMAN LEWIS HAYES,
             Defendant-Appellant.
                                       
UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                       No. 02-4605
PHILLIP RAY FREEZE,
               Defendant-Appellant.
                                       
UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                       No. 02-4610
GEORGE ALLEN GREESON,
             Defendant-Appellant.
                                       
UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                       No. 02-4651
GEORGE THOMAS FAIL,
             Defendant-Appellant.
                                       
2                     UNITED STATES v. HAYES
           Appeals from the United States District Court
       for the Middle District of North Carolina, at Durham.
                William L. Osteen, District Judge.
                      (CR-02-25, CR-02-26)

                    Submitted: May 29, 2003

                     Decided: June 23, 2003

    Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                           COUNSEL

Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina; James E. Quander, Winston-Salem, North Carolina;
Christopher R. Clifton, Winston-Salem, North Carolina; Walter L.
Jones, Greensboro, North Carolina, for Appellants. Anna Mills Wag-
oner, United States Attorney, Angela H. Miller, 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Unpublished opinions are not binding precedent in this circuit.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:

  George Allen Greeson, Norman Lewis Hayes, Phillip Ray Freeze,
and George Thomas Fail all pled guilty to knowingly engaging in the
business of firearms dealing without a license, 18 U.S.C.
                       UNITED STATES v. HAYES                         3
§ 922(a)(1)(A) (2000). Hayes and Freeze were sentenced to terms of
thirty-seven months imprisonment. Greeson received a sentence of
forty-six months imprisonment. Fail was sentenced to forty-one
months imprisonment. All appeal their sentences, alleging that the
district court erred in using the enhanced base offense level for an
offense involving a semiautomatic assault weapon as defined in 18
U.S.C. § 921(a)(30)(B) (2000). See U.S. Sentencing Guidelines Man-
ual § 2K2.1(a)(5) (2001). Freeze also argues that the semiautomatic
assault weapon should not have been considered relevant conduct in
his case. Greeson maintains that the district court’s decision not to
depart downward in his case is reviewable for abuse of discretion and,
alternatively, that the court mistakenly believed that it lacked author-
ity to depart. We affirm.

   Between October 27, 2001, and January 12, 2002, agents conduct-
ing an investigation for the Bureau of Alcohol, Tobacco, and Firearms
(ATF) observed George Allen Greeson, Norman Lewis Hayes, and
Phillip Ray Freeze selling firearms together on numerous occasions
at the Buckthorn Flea Market in Mebane, North Carolina. None of the
defendants were licensed to sell firearms, and Greeson had been
warned in 1989 by the ATF that a federal firearms license was
required for the sale of firearms. On December 8, 2001, the agents
observed Greeson sell a Norinco SKS semiautomatic rifle with a col-
lapsible stock, detachable magazine, affixed bayonet, and pistol grip.
Firearms with these characteristics are defined as semiautomatic
assault weapons in § 921(a)(30)(B). During the same period, the
agents observed George Thomas Fail selling firearms at the flea mar-
ket with Billy Ray McLeod. Neither Fail nor McLeod were licensed
to sell firearms. On November 17, 2001, the agents bought an SKS
"Black Beauty" semiautomatic rifle with a collapsible stock and bayo-
net from Fail. This weapon also met the requirements for a semiauto-
matic assault weapon under § 921(a)(30)(B).

   All four defendants were arrested on January 12, 2002. Greeson,
Hayes, and Freeze entered guilty pleas to the charge of selling fire-
arms without a federal license. Fail went to trial on the same charge,
but entered a guilty plea in the middle of trial. All four defendants
received an enhanced base offense level of 18 under USSG
§ 2K2.1(a)(5) because their offenses involved a firearm described in
§ 921(a)(30).
4                       UNITED STATES v. HAYES
   Appellants contested the enhanced base offense level1 under
§ 2K2.1(a)(5), noting that the Violent Crime Control Act of 1994
banned the manufacture, transfer, or possession of semiautomatic
assault weapons as of September 13, 1994, see 18 U.S.C.A.
§ 922(v)(1) (West 2000 & Supp. 2002), but that qualifying weapons
lawfully possessed before that date were exempted under 18 U.S.C.
§ 922(v)(2) (2000). They asserted that the government could not
prove whether the semiautomatic assault weapons in question had
been manufactured after September 13, 1994, and that the weapons
should, therefore, be treated as lawful, "pre-ban" weapons that could
be lawfully possessed and transferred. Consequently, they argued, the
guideline enhancement should not be applied.

   The government conceded that it could not prove the date the
weapons were manufactured and that they should be treated as a "pre-
ban" weapons. However, the government argued that the enhanced
base offense level should apply because the guideline excluded from
consideration weapons exempted under 18 U.S.C. § 922(v)(3) (2000),2
but not those exempted under § 922(v)(2). See USSG § 2K2.1, com-
ment. (n.3) ("A ‘firearm described in 18 U.S.C. § 921(a)(30)’ (per-
taining to semiautomatic assault weapons) does not include a weapon
exempted under the provisions of 18 U.S.C. § 922(v)(3)."). The dis-
trict court determined that the enhanced base offense level applied
regardless of whether the firearms in question were "pre-ban" or
"post-ban."

   On appeal, Appellants first challenge this ruling. Generally, an
issue that turns primarily on the legal interpretation of a guideline is
    1
     Greeson raised this issue before he was sentenced. Although Hayes
and Freeze had already been sentenced, the district court set aside their
sentences to allow them to file supplemental memoranda adopting the
issue. After the issue was resolved at Greeson’s sentencing hearing, the
district court resentenced Hayes and Freeze to the same terms it had ini-
tially imposed.
   2
     This subsection exempts weapons listed in Appendix A to § 922,
manually operated firearm, inoperable and antique firearms, semiauto-
matic rifles that cannot use a detachable magazine holding more than 5
rounds of ammunition, and semiautomatic shotguns that cannot hold
more than 5 rounds of ammunition.
                        UNITED STATES v. HAYES                         5
reviewed de novo. United States v. Kinter, 235 F.3d 192, 195 (4th Cir.
2000). Because the government presented no evidence as to the age
of the weapons in question and agreed that they should be considered
pre-ban weapons, we will also treat the weapons as pre-ban weapons.

   Appellants stress the fact that none of them were legally prohibited
from possessing firearms. They renew their argument that the
enhanced base offense level provided in § 2K2.1(a)(5) should not be
applied to semiautomatic assault weapons that are lawfully possessed.
They contend that the Sentencing Commission exceeded its authority
when it created an enhancement for possession of a semiautomatic
assault weapon by a non-prohibited person without including an
exemption similar to that in § 922(v)(2) for weapons that were law-
fully possessed before the enactment of the statute.

   Appellants further argue that the statute controls over the guideline,
citing United States v. LaBonte, 520 U.S. 751, 757 (1997) (construing
Amendment 506 to USSG § 4B1.1). They suggest that this court
should "avoid the statutory/guideline conflict" by "harmoniz[ing]
USSG § 2K2.1(a)(5) with 18 U.S.C. §§ 921(a)(30) and 922(v) to
exclude offenses involving lawfully possessed firearms by non-
prohibited persons." (Appellants’ Br. at 16). They also rely on United
States v. Palmer, 183 F.3d 1014, 1015 (9th Cir. 1999), which held
that the sentencing court erred in using a prior drug conviction for
which the defendant’s civil rights had been restored to justify an
enhanced base offense level under § 2K2.1(a)(4)(A), although the
commentary to § 2K2.1 and USSG § 4A1.2, read together, require
consideration of the conviction.

   However, we are persuaded that the enhanced base offense level
was properly applied because the firearms at issue meet the definition
of semiautomatic assault weapon in § 921(a)(30)(B), and neither that
portion of the statute nor the guideline exempts pre-ban weapons. The
exemptions in § 922(v)(2) and (v)(3) apply only to convictions for
possession of certain semiautomatic assault weapons. Appellants were
not prosecuted for illegally possessing the semiautomatic assault
weapons. Appellants were convicted of knowingly selling firearms
without a federal firearms license. The guideline provision which pro-
vides an enhancement for illegally selling a semiautomatic assault
weapon does not conflict with § 922(v) or exceed the authority of the
6                      UNITED STATES v. HAYES
Sentencing Commission. Section 922(v) provides no benefit to a per-
son convicted of engaging in the business of illegally selling firearms
without a license. We conclude that the district court did not err in
finding that the exemption in § 922(v)(2) from prosecution for posses-
sion of certain semiautomatic assault weapons does not exclude an
enhanced base offense level for an offense involving such weapons
when the defendant has been convicted of illegally selling firearms
without a license.

   Next, Freeze maintains that the district court erred in giving him
the enhanced base offense level under § 2K2.1(a)(5) because the
Norinco SKS semiautomatic assault weapon that Greeson sold to a
customer at the flea market on December 8, 2001, was not relevant
conduct as to him. He asserts that he was not present when Greeson
sold the rifle on December 8, 2001, or when it was displayed to Agent
Cates on November 25, 2001. Therefore, he argues, the government
did not show that Greeson’s sale of such a weapon was either reason-
ably foreseeable to him or within the scope of his agreement. See
USSG § 1B1.3(a)(1)(B) & comment. (n.2) (defendant in a jointly
undertaken criminal activity is responsible for all reasonably foresee-
able acts of others done in furtherance of the jointly undertaken crimi-
nal activity). Whether the semiautomatic assault weapon was
reasonably foreseeable and within the scope of Freeze’s agreement is
a factual question that is reviewed for clear error. United States v.
Harrison, 272 F.3d 220, 223 (4th Cir. 2001), cert. denied, 123 S. Ct.
162 (2002).

   Agent Cates testified that, in a statement made after his arrest,
Freeze admitted that he had assisted Greeson and Hayes in selling
firearms at the flea market for four or five years. There is no informa-
tion in the record that Freeze placed any limits on the types of fire-
arms he would sell. Although the district court decided that a number
of stolen guns found in Greeson’s vehicle on the day the defendants
were arrested were not attributable to Freeze or Hayes because the
government could not prove that the stolen guns were within the
scope of their agreement, those weapons were not sold or displayed
at the flea market. The court so found because Greeson was arrested
on his way to the flea market and the district court decided that there
was insufficient evidence from which to conclude that Greeson
intended to sell the stolen guns he had with him at the flea market.
                        UNITED STATES v. HAYES                         7
Unlike the stolen weapons, the qualifying semiautomatic assault
weapon was sold as part of the routine business that Freeze, by his
own admission, participated in for several years. We conclude that the
district court did not clearly err in treating the weapon as relevant
conduct as to Freeze.

   Greeson seeks review of the district court’s decision not to depart
based on his age (he was eighty-two when he was sentenced) or his
health. However, he acknowledges that our precedents preclude
appellate review when a defendant challenges the sentencing court’s
decision not to depart below the guideline range, United States v.
Bayerle, 898 F.2d 28, 31 (4th Cir. 1990), except in those cases where
the district court’s decision not to depart is based on a mistaken belief
that it lacks legal authority to depart. United States v. Hall, 977 F.2d
861, 863 (4th Cir. 1992). He also recognizes that, in this circuit, a
panel may not overrule the decision of another panel. United States
v. Ruhe, 191 F.3d 376, 388 (4th Cir. 1999).3

   Greeson also contends that the district court failed to depart down-
ward only because it mistakenly believed that it lacked the authority
to depart and, therefore, its decision should be reviewed by this court.
His argument is based on the district court’s comments about our
reversal of the downward departure in United States v. Coble, No. 00-
4247, 2001 WL 431529 (4th Cir.), cert. denied, 534 U.S. 1023 (2001)
(unpublished). Coble was convicted of obstructing the tax laws. He
was in his 70’s. The district court departed because it found that the
offense was an act of aberrant behavior and because of a combination
of discouraged factors: his age (Coble was apparently in good health),
his good employment record, lack of criminal record, community ties,
military service, and the emotional toll he had suffered from his battle
against the Internal Revenue Service. Coble, 2001 WL 31529, at **4.

   Greeson was 82 years old when he was sentenced. Two months
earlier, in May 2002, he had a cancerous tumor removed from his
colon. A letter to the probation officer from his doctor stated that he
suffered from chronic obstructive pulmonary disease, degenerative
disc disease, and diabetes which was controlled by diet. The district
court was plainly troubled about Greeson’s age and health and men-
  3
   Greeson asks that the issue be reconsidered en banc.
8                       UNITED STATES v. HAYES
tioned the reversal of the downward departure in Coble, adding, "I
don’t find any separation between this case and Mr. Coble’s case. If
I could, I would, but I simply can’t find any, and I think that I’m
bound to follow what the Court has said." After Greeson further
alleged that he suffered from skin cancer on his head and arms, had
been treated by surgery for glaucoma on his left eye, and needed the
same surgery on his right eye, the court stated, "This is a very, very
difficult case. . . . I think that judges ought to have some grounds, and
if I had any, I would depart downward. I don’t see any basis to do that
here." Greeson argues that the district court mistakenly believed that
it was bound by the outcome in Coble and thus without authority to
depart downward.

   We note that the sentencing court’s authority to depart based on
any factor that is not forbidden is well established. The policy state-
ments that deal with age and physical condition as potential factors
for departure each state that these factors are "not ordinarily relevant
in determining whether a sentence should be outside the applicable
guideline range," thus leaving open the possibility that a departure
may be warranted in an unusual case. USSG §§ 5H1.1, p.s. (Age),
5H1.4, p.s. (Physical Condition). These factors are "discouraged"
bases for departure, but may be the basis of a departure in an excep-
tional case. United States v. Rybicki, 96 F.3d 754, 758 (4th Cir. 1996).
Because the law is settled in this area, we interpret the court’s com-
ments in this case to mean that the court was unable to find that Gree-
son’s case was an exceptional one which justified departure. We
cannot conclude from the court’s statement that it would prefer a
wider latitude to depart that it mistakenly believed it lacked authority
to depart. Therefore, we conclude that the court understood its author-
ity to depart and exercised its discretion not to depart.

   Accordingly, we affirm the sentences imposed by the district court.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

                                                            AFFIRMED
