                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4098



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus

RAYMOND WALKER, a/k/a Raymond Walker, Jr.,
                                              Defendant - Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Charleston.   Patrick Michael Duffy, District
Judge. (2:06-cr-00528)


Submitted:   January 10, 2008             Decided:   January 31, 2008


Before WILKINSON, TRAXLER, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Albert P. Shahid, Jr., SHAHID LAW OFFICE, LLC, Charleston, South
Carolina, for Appellant.      Reginald I. Lloyd, United States
Attorney, Alston C. Badger, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Pursuant to a plea agreement, Raymond Walker pled guilty

to possession with intent to distribute marijuana, in violation of

21 U.S.C. § 841(a)(1), (b)(1)(D) (2000), and using and carrying a

firearm during and in relation to, and possessing a firearm in

furtherance of, a drug trafficking crime, in violation of 18

U.S.C.A. § 924(c)(1)(A) (West Supp. 2007).                  The district court

sentenced    Walker    to   ninety    months      in   prison.     Walker     timely

appealed.

            Walker first contends that the district court erred in

accepting his guilty plea. Because Walker did not seek to withdraw

his guilty plea in the district court and points to no errors in

the Fed. R. Crim. P. 11 hearing, we find that the district court

did not plainly err in accepting his guilty plea.                United States v.

Martinez, 277 F.3d 517, 525 (4th Cir. 2002) (providing standard).

            In addition, Walker argues that the district court erred

by failing to downwardly depart from the guideline range pursuant

to U.S. Sentencing Guidelines Manual § 5K2.13 (2005), based on his
diminished    capacity.       A   district     court’s     failure     to   grant   a

downward departure is not reviewable unless the court was under the

mistaken impression that it lacked the authority to depart. United
States v. Matthews, 208 F.3d 338, 352 (4th Cir. 2000); see also

United   States   v.    Cooper,      437   F.3d    324,   333    (3d   Cir.    2006)

(collecting cases declining to review district court’s decision not

to depart, even after United States v. Booker, 543 U.S. 220

(2005)).    Because Walker did not request a departure, the district


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court did not consider a departure based on his diminished capacity

and thus did not make any decisions concerning its authority to

depart on that ground.   We therefore lack jurisdiction to review

the district court’s failure to depart sua sponte.

           Accordingly, we affirm the judgment of the district

court.   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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