UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 96-4909

ASHLEY RICHARD FOLEY,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, District Judge.
(CR-96-36-MU)

Submitted: July 24, 1997

Decided: August 4, 1997

Before HAMILTON, LUTTIG, and MOTZ, Circuit Judges.

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Dismissed by unpublished per curiam opinion.

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COUNSEL

Aaron E. Michel, Charlotte, North Carolina, for Appellant. Mark T.
Calloway, United States Attorney, David C. Keesler, Assistant United
States Attorney, Charlotte, North Carolina, 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Unpublished opinions are not binding precedent in this circuit.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:

Ashley Foley pled guilty to one count of bank robbery under 18
U.S.C. § 2113(a) (1994). He seeks to appeal his 41-month sentence,
contending that the district court erred by refusing to depart down-
ward. Foley filed a motion for a downward departure on the basis of
his allegedly diminished capacity, citing the United States Sentencing
Commission, Guidelines Manual § 5K2.13 (Nov. 1995). After hear-
ing argument on the motion, the district court concluded that Foley
was not entitled to a downward departure and denied the motion.

A sentencing court's discretionary decision not to depart from the
guidelines range is not subject to appellate review. See United States
v. Bayerle, 898 F.2d 28, 31 (4th Cir. 1990). However, if the court
bases its decision not to depart on a perceived lack of legal authority,
its decision is a legal one, which is reviewed de novo. See United
States v. Hall, 977 F.2d 861, 863 (4th Cir. 1992). Here, the district
court stated its finding that Foley had committed bank robbery using
an apparently dangerous weapon. On that finding, the district court
concluded that Foley had committed a "crime of violence" and was
not, therefore, entitled to a departure. See United States v. Weddle, 30
F.3d 532, 537-40 (4th Cir. 1994). The court expressed no desire to
depart. We find that the court exercised its sound discretion in decid-
ing not to depart. We therefore determine that the district court's deci-
sion is not subject to appellate review and dismiss the appeal.

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.

DISMISSED

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