UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 97-4375

THEODORE T. RYBICKI,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-93-349)

Submitted: November 25, 1997

Decided: December 29, 1997

Before HALL, MURNAGHAN, and NIEMEYER, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

Charles F. Daum, Arlington, Virginia, for Appellant. Helen F. Fahey,
United States Attorney, Vincent L. Gambale, Assistant United States
Attorney, William G. Otis, Senior Litigation Counsel, Alexandria,
Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Theodore T. Rybicki, a former United States Secret Service officer,
appeals his conviction for conspiracy and perjury. At his initial sen-
tencing, the district court declined to apply a two-level obstruction of
justice enhancement for trial perjury, granted a five-level downward
departure, and sentenced Rybicki to three years probation with four
months of home confinement. The district court based its downward
departure on the confluence of six factors.

This court affirmed Rybicki's convictions as well as the district
court's refusal, in sentencing him, to enhance his sentence five levels
based on the amount of loss to the government. See United States v.
Rybicki, Nos. 94-5360, 94-5362, 1995 WL 420001 (4th Cir. July 13,
1995) (unpublished). However, this court vacated his sentence and
remanded for resentencing to allow the district court to consider
whether Rybicki's sentence should be enhanced for obstruction of
justice. See id. Also, this court reversed the district court's downward
departure of five levels after finding that the court had erred in relying
on factors that the Sentencing Guidelines specify are not ordinarily
relevant. See id. The United States Supreme Court subsequently
granted Rybicki's petition for a writ of certiorari, vacated the judg-
ment, and remanded the case for further consideration in light of
Koon v. United States, ___ U.S. ___, 64 U.S.L.W. 4512 (U.S. June
13, 1996) (Nos. 94-1664, 94-8842) (holding that a district court's
decision to depart from the guidelines in an atypical case is to be
reviewed for abuse of discretion). See Rybicki v. United States, 64
U.S.L.W. 3854 (U.S. June 24, 1996) (No. 95-6636). This court then
issued a published opinion affirming its earlier decision reversing the
five-level downward departure, but based on "modified reasoning"
under Koon. See United States v. Rybicki , 96 F.3d 754, 757-59 (4th
Cir. 1996). This court found that, because none of the six factors justi-
fied the district court's decision to depart downward, the court abused
its discretion in granting Rybicki a five-level downward departure.
See id. at 759. This court again remanded for reconsideration of the
obstruction enhancement. See id. at 760.

On remand, Rybicki moved the court to depart downward from the
sentencing guidelines based upon several factors, including the ones

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he had previously raised. The district court, however, refused to
depart downward or to impose a two-level enhancement for obstruc-
tion of justice and sentenced Rybicki to eighteen months imprison-
ment followed by two years of supervised release. Rybicki timely
appeals.

On appeal, Rybicki claims that the district court erroneously deter-
mined that it did not have the authority to depart downward based on
Rybicki's pension loss. At his resentencing on remand, Rybicki
argued that the loss of his pension and disability benefits provided a
basis for departing downward because the loss of financial entitle-
ment, earned after nineteen and one-half years of military and govern-
ment service, was an unusually severe consequence flowing from his
conviction.

A decision not to depart is normally not appealable. See United
States v. Bayerle, 898 F.2d 28, 31 (4th Cir. 1990). However, an
appeal may be entertained if the district court's decision was based on
an erroneous belief that it lacked the legal authority to depart. See
United States v. Hall, 977 F.2d 861, 863 (4th Cir. 1992).

The sentencing transcript reveals that the district court heard argu-
ment on the consequences of Rybicki's loss of his pension. We find
that the district court considered the pension issue as a basis for a pos-
sible departure but found that the facts of this particular case did not
warrant a downward departure on that basis. Therefore, Rybicki is
precluded from appealing the district court's refusal to depart down-
ward based on the loss of his pension.

Rybicki also alleges that the district court erroneously determined
that it lacked the discretion to depart downward based upon: (1) the
effect of a felony conviction and imprisonment on an individual in
Rybicki's circumstances, a law enforcement officer; and (2) the
extreme hardship placed on Rybicki, an experienced firearms trainer
and handler, by his felony conviction. Rybicki concedes that this
court found that a downward departure based solely on membership
in law enforcement constituted legal error. See Rybicki, 96 F.3d at
759. He claims, however, that at resentencing he set forth an individu-
alized basis for departure other than mere membership in the group
of law enforcement officers. Rybicki contends that the district court

                     3
was not precluded from making an individualized determination that
he might be exposed to extraordinary punishment as a result of his
experience and work detail as a law enforcement officer. We find that
this is the same argument expressly rejected by this court in Rybicki,
96 F.3d at 759. This court stated that the factors--that as a law
enforcement officer Rybicki will suffer disproportionately when
incarcerated and that his status as a convicted felon will constitute
sufficient punishment--do not warrant a departure because the first
factor is inconsistent with the structure of the relevant guidelines and
the second factor is not present to an exceptional degree. See id.
Therefore, Rybicki is precluded from appealing the district court's
refusal to depart downward based on these two factors.

Accordingly, we affirm Rybicki's sentence. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.

AFFIRMED

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