UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                       No. 95-5231

THERON RATH LIVINGSTON,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Deborah K. Chasanow, District Judge.
(CR-94-260-DKC)

Submitted: January 11, 1996

Decided: February 2, 1996

Before RUSSELL, HALL, and WILKINSON, Circuit Judges.

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Dismissed by unpublished per curiam opinion.

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COUNSEL

David L. Zeiger, Baltimore, Maryland, for Appellant. Lynne A. Bat-
taglia, United States Attorney, John F. Purcell, Jr., Assistant United
States Attorney, Baltimore, Maryland, 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Unpublished opinions are not binding precedent in this circuit.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:

Theron Rath Livingston pled guilty to one count of distributing
crack cocaine, 21 U.S.C.A. § 841 (West 1981 & Supp. 1995), and
was sentenced to serve a term of 70 months imprisonment. He con-
tends on appeal that the district court erred in departing downward by
only two offense levels under USSG § 5K1.1,* as requested by the
government. We dismiss the appeal for lack of jurisdiction.

The extent of a downward departure cannot be challenged on
appeal by a defendant unless the departure resulted in a sentence
imposed in violation of law or resulted from an incorrect application
of the guidelines. United States v. Hill, 70 F.3d 321, 324 (4th Cir.
1995). Livingston asserts that the district court failed to make an inde-
pendent assessment of the usefulness of his cooperation. However,
the record does not bear out his assertion. The district court heard an
extensive discussion of Livingston's cooperation both from the gov-
ernment and from Livingston's wife and mother. Livingston also sub-
mitted a chronology of his efforts to assist the government. The
district court found that Livingston's delay in entering his guilty plea
and beginning his cooperation had diminished his ability to provide
useful information. We find that the district court properly assessed
Livingston's assistance before deciding that a two-level departure was
appropriate.

Accordingly, we dismiss the appeal. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.

DISMISSED
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*United States Sentencing Commission, Guidelines Manual (Nov.
1994).

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