UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 98-4676

THEODORE MCFARLIN,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CR-97-736)

Submitted: March 31, 1999

Decided: May 6, 1999

Before WIDENER, ERVIN, and WILKINS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

I.S. Leevy Johnson, Columbia, South Carolina, for Appellant. J. Rene
Josey, United States Attorney, Scarlett Wilson, Assistant United
States Attorney, Columbia, South 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Unpublished opinions are not binding precedent in this circuit.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:

Theodore McFarlin appeals from a 292-month sentence imposed
following his convictions for conspiracy to possess with intent to dis-
tribute and to distribute cocaine in violation of 21 U.S.C.A. § 846
(West Supp. 1998), and for two counts of making false declarations
in violation of 18 U.S.C.A. § 1623 (West Supp. 1998). McFarlin chal-
lenges the district court's refusal to grant a downward departure based
upon his poor health and the court's relevant conduct determination
of the amount of drugs attributable to McFarlin. We find no error and
affirm.

We note that the district court's refusal on the merits to depart
below the applicable guideline range is not reviewable on appeal. See
United States v. Jones, 18 F.3d 1145, 1148 (4th Cir. 1994). After
reviewing the excerpts of the trial and sentencing transcripts, we find
that the district court's attribution to McFarlin of the drug transactions
by McFarlin's co-conspirator was not clearly erroneous. See United
States v. Williams, 986 F.2d 86, 90 (4th Cir. 1993). We further note
that even assuming the challenged transactions were not included in
the amount of drugs attributed to McFarlin, his base offense level
would remain the same and any such error would be harmless. See
United States v. Sampson, 140 F.3d 585, 593 (4th Cir. 1998).

Accordingly, we affirm McFarlin's sentence. 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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