UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 96-4452

JOHN EISENHARDT,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CR-95-468-S)

Submitted: April 8, 1997

Decided: July 30, 1997

Before WIDENER, HALL, and NIEMEYER, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

M. Brooke Murdock, FERGUSON, SCHETELICH, HEFFERNAN &
MURDOCK, P.A., Baltimore, Maryland, for Appellant. Lynne A.
Battaglia, United States Attorney, Joseph L. Evans, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Eisenhardt appeals his sentence imposed for violating 18 U.S.C.
§ 371 (1994). He pleaded guilty to conspiring to distribute a sexually
explicit videotape involving a minor. Eisenhardt paid three minor,
male prostitutes to come to his apartment and engage in sexual
encounters with an adult male. Eisenhardt videotaped the encounters
and spliced the scenes together along with religious music and scenes
placed throughout. Eisenhardt took the tape to the home of Basil
Ketchum, left the tape with Ketchum, and it was discovered pursuant
to a search of a storage locker under Ketchum's control. Eisenhardt
appeals the district court's denial of three motions for a downward
departure from the sentencing guidelines. We affirm.

Eisenhardt argues that the district court erred in not exercising its
discretion but rather deciding as a matter of law that his requests for
downward departures should be denied. He contends that in light of
Koon v. United States, 64 U.S.L.W. 4512 (U.S. June 13, 1996) (No.
94-1664, 94-8842), his sentence should be vacated and the case
remanded for resentencing. We reject Eisenhardt's interpretation of
the district court's action. The district court did rule as a matter of law
that it could not depart but in making that determination the court
considered the facts of Eisenhardt's case and the governing law in
each of the three instances. We therefore proceed to determine
whether the decisions may be affirmed and find that they may.

Following Koon, factors considered as grounds for departures are
placed into certain categories which determine the test for finding
whether departure is appropriate. See United States v. Brock, ___ F.3d
___, slip op. at 5 (4th Cir. Feb. 28, 1997) (No. 96-4405). The first fac-
tor advanced is that the sentencing guideline itself overrepresents the
seriousness of Eisenhardt's conduct. This is an"unmentioned" factor
and thus departure is appropriate if, taking into consideration the
structure and theory of both relevant individual guidelines and the
guidelines taken as a whole, the circumstances presented are suffi-
cient to remove the case from the heartland of the applicable guide-
line. The district court found that the facts of this case were not
sufficiently atypical to take it out of the heartland of cases falling

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under U.S. Sentencing Guidelines Manual § 2G2.1 (1995). We find
no abuse of discretion.

Eisenhardt's next proffered factor is family circumstances. This is
a "discouraged" factor. See USSG § 5H1.6. Departure is permitted on
this factor only if the factor is present to an exceptional degree or in
some other way makes the case different from the ordinary cases
where the factor is present. Brock, slip op. at 6. We find no abuse of
discretion in the district court's determination that no departure was
permitted based upon circuit precedent and Eisenhardt's evidence
which showed that his mother may lose the family home and have to
be placed in a "home" if he is incarcerated for a lengthy period. See
United States v. Rybicki, 96 F.3d 754, 758-59 (4th Cir. 1996); United
States v. Brand, 907 F.2d 31, 33 (4th Cir. 1990).

Eisenhardt's final proffered factor is his supposed reduced role in
the offense. He did not attempt to gain a reduction for his reduced role
under USSG § 3B1. This factor is an "encouraged" factor but it is
taken into account in the guidelines under § 3B. See USSG § 5H1.7.
The same criteria for departure applies as for his family circumstances
factor. We again find no abuse of discretion in the district court's
finding that his role, as the actual maker of the videotape, was not a
relatively blameless one and that the departure was not warranted.

We therefore affirm the district court's refusal to depart based upon
these three bases. We dispense 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.

AFFIRMED

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