UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                        No. 98-4137

JESSE WILLIS THURSTON,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Harrisonburg.
Samuel G. Wilson, Chief District Judge.
(CR-93-105-H)

Submitted: October 20, 1998

Decided: November 17, 1998

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

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Gregory W. Bowman, CHASLER & BOWMAN, P.L.C., Winchester,
Virginia, for Appellant. Robert P. Crouch, Jr., United States Attorney,
Ruth E. Plagenhoef, Assistant United States Attorney, Roanoke, Vir-
ginia, 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Unpublished opinions are not binding precedent in this circuit.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:

Jesse Willis Thurston, Jr., was convicted pursuant to his guilty plea
of possession of firearms by a convicted felon. On appeal, he alleges
that the district court erred by refusing to order that his sentence run
concurrent to a prior, discharged federal sentence, or, in the alterna-
tive, granting his motion for a downward departure pursuant to USSG
§ 5K2.0.1 Finding no reversible error, we affirm.

In late 1991 and 1992, law enforcement officers in Texas broke up
a large drug conspiracy. Thurston was identified as a distributor for
the conspiracy in Virginia. United States Marshals arrived at Thur-
ston's residence in January 1993 to serve him with an arrest warrant
for the Texas conspiracy. While serving the warrant, officers found
evidence of other crimes, including numerous weapons, drugs, and
drug paraphernalia. Thurston was convicted of conspiracy in the
Southern District of Texas in 1993, and he completed his term of
imprisonment in December 1995. None of the evidence found in his
home was used against Thurston in his Texas conviction or sentence.

In June 1993, Thurston was named in a three-count indictment in
the Western District of Virginia based on the evidence found in his
home. There was no mention of the Texas conspiracy in the indict-
ment. In October 1994, Thurston pled guilty to one count of using or
carrying a firearm during and in relation to a drug trafficking offense
pursuant to 18 U.S.C. § 924(c) (1994), and he was sentenced to sixty
months' imprisonment to be served consecutively with the Texas sen-
tence. Following the Supreme Court's decision in Bailey v. United
States, 516 U.S. 137 (1995), Thurston filed a motion to vacate his
sentence under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998), chal-
lenging the validity of his guilty plea. The district court agreed that
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1 U.S. Sentencing Guidelines Manual (1997).

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relief was warranted under Bailey, but advised Thurston that the other
counts in the indictment carried more severe penalties and that he
might be exposed to a greater term of imprisonment as a result of a
successful motion.

Thurston insisted on withdrawing his guilty plea, and the district
court reinstated the indictment and ordered a new trial. In November
1997, just prior to trial, Thurston pled guilty to possession of firearms
by a convicted felon. At sentencing, Thurston argued that the sentence
for his felon in possession conviction should run concurrent to his
Texas sentence pursuant to USSG § 5G1.3(b). However, defense
counsel conceded that USSG § 5G1.3(b) did not apply because the
Texas sentence had been fully discharged. Thurston argued in the
alternative that the court should grant him a downward departure pur-
suant to USSG § 5K2.0 to achieve the same result.2 The district court
denied the motion, and Thurston filed a timely notice of appeal.

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). Thurston alleges that the district court had
such a belief because the court stated that its"hands [were] tied." We
disagree. It is clear from the context of the entire sentencing hearing
and the court's prior orders that the court was merely commenting on
the fact that it did not find any basis for a departure and that it had
warned Thurston that he was likely to face a longer prison term by
withdrawing his guilty plea. The court heard arguments from both
sides and properly determined that Thurston's situation (i.e., a remand
after a successful § 2255 motion) was not unusual enough to warrant
a departure.

We further find that the district court properly refused to give
Thurston credit for the Texas sentence pursuant to USSG § 5G1.3(b).
Since the Texas sentence had been completely discharged, USSG
§ 5G1.3(b) did not apply. See United States v. McHan, 101 F.3d 1027,
1040 (4th Cir. 1996), cert. denied, #6D6D 6D# U.S. ___, 65 U.S.L.W. 3826
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2 Thurston's basic argument was that he should not be exposed to a lon-
ger prison term after mounting a successful collateral attack on the valid-
ity of his first guilty plea.

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(U.S. June 16, 1997) (No. 96-8994). We also reject Thurston's con-
tention that had Bailey been available at the time of his first guilty
plea, he would have pled guilty to the felon in possession charge and
been eligible for a concurrent sentence either through USSG
§ 5G1.3(b) or a downward departure. We find this assertion highly
speculative and conclusory. Moreover, USSG § 5G1.3(b) still would
have been unavailable because the two convictions were completely
separate.

We therefore affirm Thurston's conviction and sentence. The Gov-
ernment's unopposed motion to decide the case on the briefs is
granted. 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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