UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                     No. 96-4808

RANDOLPH AYERSMAN,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
M. J. Garbis, District Judge; Herbert N. Maletz,
Senior Judge, sitting by designation.
(CR-95-90-MJG)

Submitted: April 8, 1997
Decided: April 24, 1997

Before WIDENER, HALL, and MICHAEL, Circuit Judges.

_________________________________________________________________
Dismissed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Gregg L. Bernstein, MARTIN, JUNGHANS, SNYDER & BERN-
STEIN, P.A., Baltimore, Maryland, for Appellant. Lynne A. Bat-
taglia, United States Attorney, Richard C. Kay, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Randolph Ayersman appeals the 60-month sentence he received
after he pled guilty to possession of marijuana with intent to
distrib-
ute, 21 U.S.C. § 841 (1994), and money laundering, 18 U.S.C. § 1957
(1994). He contends that the district court abused its discretion
in con-
sidering the nature of his offense and his culpability in
determining
the extent of a substantial assistance departure, USSG § 5K1.1,
p.s.1
Ayersman also argues that his assistance merited more than the
four-
level departure that the court determined was appropriate. Ayersman
has moved for summary disposition of his case and a remand for
resentencing. The government does not oppose the motion. We dis-
miss the appeal for lack of jurisdiction and deny the motion for
sum-
mary disposition as moot.
Randolph Ayersman moved to Maryland from California in 1971.
In 1985, he began a home construction business with his brother.
Also
in 1985, Ayersman began obtaining marijuana in California and
trans-
porting it to Maryland, where he distributed it to Dana Kleberg. In
1994, Ayersman's brother, Wilbur, delivered two loads of marijuana
(664 pounds) to Ayersman. On December 17, 1994, agents of the
Drug Enforcement Administration (DEA) executed search warrants at
Ayersman's home and at a farm he owned. Fourteen pounds of mari-
juana were seized from a freezer in the basement of his home. In
Feb-
ruary 1995, Ayersman began cooperating with the DEA. At the end
of March, he entered into an agreement to plead guilty to money
laun-
dering and possession of marijuana with intent to distribute on
December 17, 1994. Ayersman stipulated that he took delivery of
between 1000 and 3000 pounds of marijuana and that he used cash
proceeds of his marijuana business to pay part of the purchase
price
for his farm.
_________________________________________________________________
1 United States Sentencing Commission, Guidelines Manual (Nov.
1995).
2
During his cooperation with authorities, Ayersman provided infor-
mation about his own offense. He also met with and recorded his
meetings with Philip Manglitz, a developer who sold lots to Ayers-
man and accepted undisclosed cash from marijuana sales in part pay-
ment. He made calls to his suppliers in California and traveled to
California to arrange marijuana purchases. As a result, Charles
Maier
and Oscar Lucio were prosecuted, as well as Robert Jerrell, a
driver
employed by Maier.

The government attorney recommended a four-level downward
departure, the most it was permitted to recommend according to the
United States Attorney's policy, but made clear that he believed
Ayersman had rendered an unusual degree of assistance. Ayersman's
attorney then asked for a departure of 20 levels, which would have
resulted in a guideline range in Zone B of the Sentencing Table and
authorized a sentence of probation with certain conditions. See
USSG
§§ 5A (Sentencing Table), 5B1.1(a). However, the district court
decided that a four-level downward departure was appropriate,
giving
Ayersman a guideline range of 57-71 months. The court imposed a
60-month sentence.
Ayersman first asserts that the district court misapplied USSG
§ 5K1.1 by considering factors other than his assistance to
determine
the extent of the departure. He suggests that the court could
consider
only the factors listed in USSG § 5K1.1.2 He argues that the
court's
consideration of the nature of his offense and his culpability
consti-
tuted impermissible double-counting.

This court has held that the sentencing court's decision as to the
extent of a departure in the defendant's favor is not reviewable,
but
an incorrect application of USSG § 5K1.1 is reviewable. See United
_________________________________________________________________
2 The factors are: (1) the court's evaluation of the significance
and use-
fulness of the defendant's assistance, taking into consideration
the gov-
ernment's evaluation of the assistance rendered; (2) the
truthfulness,
completeness, and reliability of any information or testimony
provided
by the defendant; (3) the nature and extent of the defendant's
assistance;
(4) any injury suffered, or any danger or risk of injury to the
defendant
or his family resulting from his assistance; (5) the timeliness of
the
defendant's assistance.

                                3
States v. Hill, 70 F.3d 321, 324-25 (4th Cir. 1995). Section 5K1.1
states that the court shall determine an appropriate reduction for
rea-
sons "that may include, but are not limited to," consideration of
the
listed factors. See USSG § 5K1.1 (emphasis added). In Hill, we held
that the district court could consider a factor unrelated to the
defen-
dant's assistance (his unexpired sentence in another federal
district)
in determining how far to depart. Hill, 70 F.3d at 324-25; see also
United States v. Alvarez, 51 F.3d 36, 39-41 & n.5 (5th Cir. 1995)
(fac-
tors unrelated to the defendant's substantial assistance may
properly
limit extent of departure); United States v. Mariano, 983 F.2d
1150,
1156-57 (1st Cir. 1993) (same). The cases on which Ayersman relies
deal with the proper bases for a decision to depart; they do not
hold
that the district court is limited in what factors it may consider
when
determining the extent of a departure.

Ayersman also contends that the extraordinary nature of his assis-
tance to the government warranted more than a four-level departure.
Under Hill, he is not entitled to appellate review of the district
court's
decision to depart by no more than four levels.

We therefore dismiss the appeal. The motion for summary disposi-
tion is denied as moot. 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.

DISMISSED

                                 4
