UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 98-4854

THADESE MOORE, a/k/a Boss,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Orangeburg.
Charles E. Simons, Jr., Senior District Judge.
(CR-97-839)

Submitted: June 29, 1999

Decided: October 15, 1999

Before ERVIN* and MICHAEL, Circuit Judges,
and BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Lionel S. Lofton, LOFTON & LOFTON, P.C., Charleston, South
Carolina, for Appellant. J. Rene Josey, United States Attorney, Cam-
eron G. Chandler, Assistant United States Attorney, Columbia, South
Carolina, for Appellee.
_________________________________________________________________
*Judge Ervin was assigned to the panel in this case but died prior to
the time the decision was filed. The decision is filed by a quorum of the
panel pursuant to 28 U.S.C. § 46(d) (1994).
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Thadese Moore, Sr., was convicted pursuant to his guilty pleas to
drug and money laundering charges. On appeal, Moore alleges that
the district court erred by denying his motion for a downward depar-
ture based on diminished mental capacity.1 Finding no reversible
error, we affirm.

For approximately twelve years, Moore operated a major drug dis-
tribution conspiracy in and around Orangeburg, South Carolina.
Moore also engaged in several financial transactions involving the
proceeds of his illegal drug activities, often titling assets in his chil-
dren's names. During sentencing, Moore, who was sixty-four years
old at the time, presented evidence showing that he had only a sixth
grade education and limited intellectual capabilities. The Government
responded by presenting evidence showing that while Moore did not
have a lot of formal education, he was very "street wise" and fully
capable of understanding the criminal nature of his activities and
making informed, reasonable decisions concerning his many business
ventures, both legitimate and illegitimate. The district court agreed
with the Government and further found that Moore was not entitled
to a departure because any reduction in his mental capacity had noth-
ing to do with his commission of the offense.

A district court's decision not to grant a downward departure is not
reviewable on appeal unless the court erroneously believed that it
lacked the authority to depart. See United States v. Bayerle, 898 F.2d
28, 30-31 (4th Cir. 1990). Moore alleges that the district court did in
fact misapprehend its authority to depart because it used the wrong
version of the Guidelines. We disagree.
_________________________________________________________________

1 See U.S. Sentencing Guidelines Manual § 5K2.13, p.s. (1998).

                     2
Moore's presentence report was prepared in April 1998 using the
1997 version of the Guidelines. Because of various delays, Moore's
sentencing hearing was not held until November 18, 1998. On
November 1, 1998, the 1998 version of the Guidelines, which incor-
porated Amendment 583, became effective. Amendment 583 changed
the wording of § 5K2.13. According to the commentary, the purpose
of the amendment was twofold: (1) to resolve a conflict between the
circuits "regarding whether the diminished capacity departure is pre-
cluded if the defendant committed a `crime of violence' as that term
is defined in the career offender guideline;" and (2) to add a definition
of the term "significantly reduced mental capacity."2

Contrary to Moore's bald assertions, we find nothing in the tran-
script of the sentencing hearing to tell us which version of the Guide-
lines the district court used.3 Therefore, Moore has failed to show that
the district court erroneously used the wrong version. More impor-
tantly, we find that the district court's analysis was sound under either
version. It was undisputed that Moore had the capacity to understand
the criminality of his actions. The defense theory at trial was that
Moore lacked the mental capacity to make reasonable decisions. The
district court expressly rejected this theory based on Moore's conver-
sations with investigators and the probation officer and his handling
of complex business transactions. We construe this to be a finding
that Moore did not suffer from a "significantly reduced mental capac-
ity" as that term is defined in the Guidelines. 4 Finally, under the 1998
version of the Guidelines, the amount of any departure should reflect
the extent to which the defendant's mental capacity contributed to the
commission of the offense. In the present case, the district court
expressly found that there was no correlation between the two. This
finding supports the court's decision that no departure was warranted.

In short, we find that the district court recognized its authority to
depart and properly analyzed the evidence in accordance with the
_________________________________________________________________
2 See USSG Supplement to Appendix C, amendment 583, comment.
3 The Government argues that we should review this issue for plain
error because Moore did not address the difference between the two ver-
sions of the Guidelines at sentencing. For reasons discussed later in this
opinion, we find it unnecessary to comment on this aspect of the issue.
4 See USSG § 5K2.13, comment. (n.1) (1998).

                     3
appropriate Guideline provision. As a result, its decision not to depart
is not reviewable. We therefore affirm Moore's convictions and sen-
tence. 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

                    4
