                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                             No. 99-4837
JOYCE LEE HIGDON,
              Defendant-Appellant.
                                       
            Appeal from the United States District Court
      for the Western District of North Carolina, at Charlotte.
              Graham C. Mullen, Chief District Judge.
                         (CR-96-104-MU)

                      Submitted: May 31, 2001

                      Decided: August 3, 2001

     Before WILKINS, MICHAEL, and KING, Circuit Judges.



Vacated and remanded by unpublished per curiam opinion.


                            COUNSEL

R. Deke Falls, LAW OFFICE OF HAROLD J. BENDER, Charlotte,
North Carolina, for Appellant. Robert J. Conrad, Jr., United States
Attorney, Brian Lee Whisler, Assistant United States Attorney, Char-
lotte, North Carolina, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                       UNITED STATES v. HIGDON
                                OPINION

PER CURIAM:

  Joyce Lee Higdon pled guilty to federal escape, in violation of 18
U.S.C. § 751(a) (1994), and was sentenced to twenty-four months
imprisonment. Prior to sentencing, Higdon submitted a motion
advancing four grounds for a downward departure. The district court
denied her motion, and Higdon now appeals from the denial. We
vacate the sentence and remand for resentencing.

   The appeals court "lacks authority to review a decision of the dis-
trict court not to depart from the applicable guideline range when that
decision rests upon a determination that a departure is not warranted."
United States v. Brock, 108 F.3d 31, 33 (4th Cir. 1997) (citing United
States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir. 1990)). However, if the
court decides not to depart because it believes it lacks legal authority
to depart, the court of appeals may review that decision. See Brock,
108 F.3d at 33. In this event, the decision of the district court is a
legal one, which this Court reviews de novo. See United States v.
Hall, 977 F.2d 861, 863 (4th Cir. 1992).

   Higdon asserted four grounds for a downward departure: (1) non-
heartland escape; (2) post-offense good behavior; (3) over-
represented criminal history; and (4) absence of an active Sentencing
Commission. As to the third ground, over-represented criminal his-
tory, the district court clearly recognized its authority to depart, stat-
ing that it "disagrees that that is over representative and in the
exercise of discretion declines to depart." Therefore, the court’s deci-
sion not to grant a downward departure on this ground is not review-
able. See Brock, 108 F.3d at 33.

   On appeal, Higdon asserts, however, that the district court erred in
concluding that it did not have the authority to depart on the other
three proffered grounds. After reviewing the transcript of the sentenc-
ing hearing on the Government’s motion to dismiss the appeal, we
found the court’s ruling ambiguous as to its basis for its refusal to
depart downward. We therefore remanded for clarification. By order,
the district court clarified its ruling, stating that its "refusal to depart
downward was a decision made as a matter of law." We, therefore,
                        UNITED STATES v. HIGDON                          3
review the district court’s refusal to depart downward on those three
grounds de novo.

  In Brock, we stated:

     When a factor has not been forbidden by the Commission—
     and it is thus a potential basis for departure—in order to
     determine whether the factor actually may support a depar-
     ture, the court must ascertain into which of the following
     categories the factor falls: (1) the factor was encouraged by
     the Commission as a basis for departure and was either (a)
     taken into account in the applicable guideline itself or (b)
     not taken into account in the guideline; (2) the factor was
     discouraged by the Commission as a basis for departure; or
     (3) the factor was unmentioned by the Sentencing Commis-
     sion.

108 F.3d at 34. If the factor is encouraged, and is not taken into
account by the applicable guideline, the court may exercise its discre-
tion and depart on that basis. Id. If the encouraged factor is taken into
account by the applicable guideline, or if the factor is discouraged,
departure is permissible only if the factor is "present to an exceptional
degree or in some other way makes the case different from the ordi-
nary case where the factor is present." Id. at 34-35. If the factor is nei-
ther encouraged nor discouraged, but is listed by the Commission as
an appropriate factor to be considered in applying an adjustment to
the guideline, the court may depart only if the factor is present to such
an exceptional or extraordinary degree that it removes the case from
the heartland of situations to which the guideline was fashioned to
apply. Id. at 35. We further instructed that, if a factor is one that is
unmentioned by the guideline, a court must, taking into consideration
"the ‘structure and theory of both relevant individual guidelines and
the [g]uidelines taken as a whole,’" determine whether the circum-
stances presented are sufficient to remove the case from the heartland
of the applicable guideline. Id. at 35 (quoting Koon v. United States,
518 U.S. 81, 95 (1996)); see also United States v. Rybicki, 96 F.3d
754, 757-58 (4th Cir. 1996) (setting out the required analysis).

  Because the three grounds for downward departure asserted by
Higdon are not forbidden factors under the guidelines, the district
4                      UNITED STATES v. HIGDON
court had the legal authority to depart if it found that departure was
warranted. Hence, in accordance with Koon and its progeny, it was
incumbent upon the district court to make the requisite inquiries.
Namely, the court should have first determined whether each relevant
factor was encouraged, discouraged, or not mentioned by the Com-
mission. Then, with respect to each factor, the court should have
determined whether the circumstances presented were sufficient to
warrant a departure using the analysis appropriate for that category.
Brock, 108 F.3d at 34-35.

   Because the district court improperly held that it did not have the
authority to depart as a matter of law, and failed to conduct the requi-
site analysis, we vacate Higdon’s sentence and remand for resentenc-
ing consistent with this opinion. 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.

                                        VACATED AND REMANDED
