UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.
                                                                     No. 96-4904
GREGORY STEVEN LATHROP, a/k/a
Greg,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca B. Smith, District Judge.
(CR-96-84)

Submitted: July 15, 1997

Decided: October 17, 1997

Before NIEMEYER and HAMILTON, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

Helen F. Fahey, United States Attorney, Fernando Groene, Assistant
United States Attorney, Norfolk, Virginia, for Appellant. James S.
Ellenson, Newport News, Virginia, 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Unpublished opinions are not binding precedent in this circuit.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:

The United States appeals the 120-month sentence imposed on
Gregory Steven Lathrop following his conviction of conspiracy to
distribute methamphetamine, 18 U.S.C. § 846 (1994), and two counts
of possession of methamphetamine with intent to distribute, 21
U.S.C.A. § 841 (West 1981 & Supp. 1997). The government contends
that the district court abused its discretion in departing downward
based on a combination of two factors: Lathrop's age (42) and lack
of prior felony criminal convictions. Because we find that the district
court erred in departing on these grounds, we vacate the sentence and
remand for resentencing within the guideline range.

The district court must impose a sentence within the guideline
range unless it determines that individual facts present in the case take
the case outside the "heartland" of typical cases embodied in the con-
duct covered by the applicable guideline. Before departing, the sen-
tencing court should determine whether the factor on which it is
considering a departure has been forbidden, encouraged, discouraged,
or unmentioned as a possible basis for departure by the Sentencing
Commission. See Koon v. United States, #6D 6D6D# U.S. ___, 64 U.S.L.W.
4512, 4516-17 (U.S. June 13, 1996) (No. 94-1664/8842); United
States v. Wilson, 114 F.3d 429, ___, 1997 WL 269332, at *4 (4th Cir.
May 22, 1997) (following Koon). Forbidden factors may never be
grounds for departure. If the factor being considered is a discouraged
factor, it may support a departure only if (1) the court finds that it is
present to an extraordinary degree which takes the case outside the
heartland of ordinary cases encompassed by the guideline, and (2) the
court determines that the factor is important enough that a departure
"should result." Id. Similarly, if a factor is encouraged but the applica-
ble guideline takes it into account, then it may justify a departure only
if it "`is present to an exceptional degree or in some other way makes
the case different from the ordinary case where the factor is present.'"

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See United States v. Brock, 108 F.3d 31, 34-35 (4th Cir. 1997) (quot-
ing Koon). In an extraordinary case, a combination of factors which
are "not ordinarily relevant" to a departure decision may cause the
case to "differ significantly from the `heartland' of cases in a way that
is important to the statutory purposes of sentencing, even though none
of the characteristics or circumstances individually distinguishes the
case." USSG § 5K2.0, comment.* A departure would be possible in
such a case, but such a case would be "extremely rare." Id.

A defendant's age is a discouraged basis for departure. Under
USSG § 5H1.1, p.s., a defendant's age may be a ground for departure
if the defendant is "elderly and infirm." Lathrop is neither and, as the
district court acknowledged, his age alone was not a ground for depar-
ture.

The Sentencing Commission has forbidden a downward departure
premised on a defendant's lack of countable criminal history points.
USSG § 4A1.3, p.s. ("The lower limit of the range for Criminal His-
tory Category I is set for a first offender with the lowest risk of recidi-
vism. Therefore, a departure below the lower limit of the guideline
range for Criminal History Category I on the basis of the adequacy
of criminal history cannot be appropriate."); see also Koon, 64
U.S.L.W. at 4520-21.

A departure may be based on a combination of factors in a rare
case only when all the factors are "not ordinarily relevant" to a depar-
ture decision. Because one of the factors on which the district court
relied in this case was a forbidden factor which can never justify a
departure, we find that the court erred in departing below the guide-
line range.

Accordingly, we vacate the sentence and remand for resentencing
within the guideline range. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.

VACATED AND REMANDED
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*United States Sentencing Commission, Guidelines Manual (Nov.
1995).

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