                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                             No. 02-4175
ROLAND D. JOHNSON,
              Defendant-Appellant.
                                       
           Appeal from the United States District Court
         for the Eastern District of Virginia, at Richmond.
                  Robert E. Payne, District Judge.
                           (CR-01-194)

                      Submitted: June 28, 2002

                      Decided: August 30, 2002

     Before LUTTIG, MOTZ, and TRAXLER, Circuit Judges.



Affirmed in part and dismissed in part by unpublished per curiam
opinion.


                            COUNSEL

Robert J. Wagner, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Richmond, Virginia, for Appellant. Paul J. McNulty,
United States Attorney, Nicholas S. Altimari, Assistant United States
Attorney, Darcey Donehey, Third-Year Law Intern, Richmond, Vir-
ginia, for Appellee.
2                     UNITED STATES v. JOHNSON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

PER CURIAM:

   Roland D. Johnson appeals from the sentence imposed after he
pled guilty to possession of marijuana, in violation of 21 U.S.C.A.
§ 844 (West 1999), and possession of a firearm by a convicted felon,
in violation of 18 U.S.C.A. § 922(g)(1) (West 2000). On appeal,
Johnson challenges the sentencing enhancement he received for hav-
ing a previous conviction for a controlled substance offense, and the
district court’s denial of his motions for downward departure based
upon lesser harms and voluntary disclosure. Finding no error, we
affirm in part and dismiss in part.

   The Guidelines allow for an enhancement when there is a previous
conviction for a controlled substance offense. U.S. Sentencing Guide-
lines Manual § 2K2.1(a)(4)(A) (2000). Under USSG § 4B1.2, a "con-
trolled substance offense" includes distribution or possession with
intent to distribute a controlled substance. Johnson argues that his
conviction for distribution as an accommodation is not the same as
distribution or possession with intent to distribute and thus, is not a
controlled substance offense.

   The district court overruled Johnson’s objection to the enhance-
ment, and found that although Johnson established that his state con-
viction involved distributing drugs as an accommodation rather than
for profit, the offense was more than simple possession, it was posses-
sion with intent to distribute a controlled substance. We conclude that
Virginia state law amply supports the district court’s conclusion. See
Winston v. Commonwealth, 16 Va. App. 901, 434 S.E.2d 4 (1993)
(holding that accommodation is a mitigation of punishment); McCoy
v. Commonwealth, 9 Va. App. 227, 234, 385 S.E.2d 628, 632 (1989)
("While the legislature had seen fit to make distribution of cocaine as
an accommodation punishable with less severity than distribution for
profit, the gravamen of the offense is possession of the drug with
                      UNITED STATES v. JOHNSON                        3
intent to distribute it to another."); Stillwell v. Commonwealth, 219
Va. 214, 222, 247 S.E.2d 360, 365 (1978) ("The provisions of § 18.2-
248(a), which deal with the reduced penalty contingent upon proof of
an accommodation gift, distribution, or possession of marijuana oper-
ate only to mitigate the degree of criminality or punishment, rather
than create two different substantive offenses as the defendants con-
tend."); Gardner v. Commonwealth, 217 Va. 5, 8, 225 S.E.2d 354,
356 (1976) (distribution for accommodation creates two defined gra-
dations of offenses, not two separate offenses). Accordingly, we
affirm this portion of the judgment.

   Next, Johnson alleges that the district court erred in denying his
motions for a downward departure based upon lesser harms, USSG
§ 5K2.11, and voluntary disclosure, USSG § 5K2.16, based on a
belief that it did not have authority to depart on these grounds. A dis-
trict court’s decision not to depart may be reviewed when it is based
on a mistaken belief that it lacks authority to depart. United States v.
Edwards, 188 F.3d 230, 238 (4th Cir. 1999), cert. denied, 528 U.S.
1130 (2000). However, no review is available when the district court
recognizes its authority to depart but decides that the facts and cir-
cumstances do not warrant a departure. United States v. Brock, 108
F.3d 31, 33 (4th Cir. 1997). We have reviewed Johnson’s arguments
that the district court mistakenly believed that it did not have author-
ity to depart on these bases and conclude that the court knew it had
authority to depart and exercised its discretion in denying the motions
for downward departure. We therefore dismiss this portion of 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.

                       AFFIRMED IN PART; DISMISSED IN PART
