UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 98-4010

ROBERT B. CHARLES,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Bluefield.
David A. Faber, District Judge.
(CR-97-67)

Submitted: July 28, 1998

Decided: August 25, 1998

Before MURNAGHAN and HAMILTON, Circuit Judges, and
HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

James B. McIntyre, MCINTYRE & COLLIAS, Charleston, West Vir-
ginia, for Appellant. Rebecca A. Betts, United States Attorney, Susan
M. Arnold, Assistant United States Attorney, Charleston, West Vir-
ginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Robert B. Charles pled guilty to one count of mail fraud, 18 U.S.C.
§ 1341 (1994), and one count of money laundering, 18 U.S.C.A.
§ 1956(a)(1)(A)(i) (West Supp. 1998). The district court imposed a
sentence of thirty-three months imprisonment, refusing Charles'
request for a downward departure. On appeal, Charles contends that
the district court mistakenly believed that it lacked authority to depart.
We affirm.

Charles falsely reported to his insurance company the theft of a
Mercedes-Benz he had purchased for $18,500. He also falsely
reported to the insurance company that he had made repairs to the
Mercedes amounting to more than $13,000. At the time of the
reported theft, Charles owed $17,686 to One Valley Bank, which held
title to the vehicle. The insurance company paid that amount to the
bank to extinguish the lien and, after receiving the title from the bank,
paid Charles over $14,000. It was later discovered that Charles still
had the Mercedes.

The money laundering count raised Charles' guideline sentence
calculation and made him ineligible for probation. Charles requested
a downward departure on the grounds that the money laundering
guideline produced disproportionately high sentences, that inconsis-
tent charging practices could produce unwarranted disparity, that the
money laundering statute was being applied more broadly than antici-
pated by the Sentencing Commission, and that the Sentencing Com-
mission had recommended amendments to the money laundering
guidelines which were not adopted by Congress. At sentencing,
defense counsel argued that Charles' conduct in committing the mail
fraud was indistinguishable from the conduct which violated the
money laundering statute and, thus, a sentence within the guideline
range which would have applied had he been convicted only of mail
fraud was appropriate. The district court decided that Charles' con-
duct was not outside the heartland of money laundering cases because

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Charles had committed additional criminal conduct after the initial
fraud when he used the fraud proceeds to pay off the lien on the Mer-
cedes, and that a departure would leave that conduct unpunished.

On appeal, Charles argues that the district court erred in deciding
that his case was within the heartland of money laundering cases.
Generally, a district court's discretionary refusal to depart is not
reviewable on appeal. See United States v. Bayerle, 898 F.2d 28, 31
(4th Cir. 1990). A narrow exception permits review if the district
court bases its decision not to depart on a mistaken view that it lacks
legal authority to depart. Id.; see also United States v. Hall, 977 F.2d
861, 863 (4th Cir. 1992). Here, the court properly concluded that a
departure was not warranted on the ground urged by Charles--that his
fraud and money laundering conduct was so closely related that he
was only technically guilty of money laundering. Section 1956 crimi-
nalizes a broad range of financial transactions with funds garnered
through a multitude of unspecified unlawful activities, including
fraud. See 18 U.S.C.A. §§ 1956(c)(7) (listing federal crimes triggering
money laundering provisions). The Eleventh Circuit has recently
explained that:

          Congress intended to criminalize a broad array of money
          laundering activity, and included within this broad array is
          [transferring fraud profits between bank accounts]. Simply
          stated, [fraud based] money laundering . . . is of the type
          considered by Congress and the Sentencing Commission.

United States v. Adams, 74 F.3d 1093, 1102 (11th Cir. 1996).

The district court did not err in finding that it was without authority
to depart so as to nullify Charles' money laundering conviction. See
id. at 1103.

We therefore affirm the sentence imposed. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.

AFFIRMED

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