UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                No. 95-5601

JERALD WILLIAMS,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, District Judge.
(CR-95-66-A)

Argued: June 6, 1996

Decided: July 23, 1996

Before WILKINSON, Chief Judge, MOTZ, Circuit Judge, and
CURRIE, United States District Judge for the
District of South Carolina, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: David Benjamin Smith, ENGLISH & SMITH, Alexan-
dria, Virginia, for Appellant. John Jude Farley, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
ON BRIEF: Helen F. Fahey, United States Attorney, Mark D.
Rubino, Special Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Jerald Williams appeals his conviction for prisoner possession of
a shank, and his sentence of twelve months in prison for the offense.
Williams asserts that the district court erred in refusing to give the
jury a self-defense instruction and refusing to grant him a downward
departure for acting in self-defense. Because we find that the circum-
stances of Williams' crime did not support a self-defense instruction,
we affirm the conviction and sentence.

I.

Williams testified that he was lying on his bed on November 4,
1994, when another inmate at the Occoquan Facility at Lorton Refor-
matory, Rico Thomas, approached him with a buck knife and home-
made shank (a sharpened metal rod). Williams said that after being
stabbed in the neck and head, he wrestled the shank from Thomas and
struck back. When Thomas ran away, Williams paused to put on his
tennis shoes, then pursued Thomas. Stabbing, chasing and chair-
throwing ensued, ending when correctional officers intervened and
confiscated the weapons.

While no one disputed William's account of how the altercation
began, the trial judge declined to instruct the jury on self-defense
because the immediate threat to Williams had subsided when he
began chasing after Thomas. Williams was found guilty of possession
of the shank, in violation of 18 U.S.C. § 13 assimilating Va. Code
§ 53.1-203(4) on April 25, 1995.

II.

A.

Williams first contends that the court should have instructed the
jury to consider self-defense as justification for his possession of the

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shank. The district court reasoned that Williams chased Thomas only
after stopping to put on his shoes; he was thus not in the kind of
immediate danger that a self-defense instruction would encompass.
We agree with this reasoning.

While we sympathize with the plight of a prisoner being attacked
by a fellow inmate, we cannot sanction retributive behavior character-
istic of a regime of inmate self-help. Under our case law, defendants
claiming self-defense to a weapons possession charge must show that
they are threatened by imminent danger of death or serious injury, and
that they have no reasonable legal alternative. United States v.
Crittendon, 883 F.2d 326, 330 (4th Cir. 1989). The moment Williams
paused to put on his shoes and chase after Thomas, he switched from
the role of defender to avenger. Instead of hailing a guard for protec-
tion, he took after his assailant. Under these circumstances, the dis-
trict court properly determined that Williams was not entitled to a
Crittendon instruction.

B.

Williams' second ground for appeal--that the judge failed to
reduce the sentence for self-defense--also fails. Under Fourth Circuit
precedent, a judge's decision not to downward depart from the guide-
line range is unreviewable. United States v. Bayerle, 898 F.2d 28, 30-
31 (4th Cir.) cert. denied 498 U.S. 819 (1990). The only exception to
this rule is if the district court mistakenly believed that it lacked
authority to depart downward. Such was not the case here. The dis-
trict judge received memoranda from both parties and from a proba-
tion officer on the issue of downward departure, and heard oral
argument from the defense. The court stated in response, "I don't find
any circumstances that would warrant a downward departure." The
trial judge thus exercised his discretion not to depart downward, and
we cannot review that decision.

III.

For the foregoing reasons, we affirm the judgment of the district
court.

AFFIRMED

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