                        UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                            No. 00-4435
CARL EDWARD METHENEY,
            Defendant-Appellant.
                                       
            Appeal from the United States District Court
     for the Southern District of West Virginia, at Charleston.
              John T. Copenhaver, Jr., District Judge.
                            (CR-99-201)

                  Submitted: February 28, 2001

                      Decided: April 4, 2001

     Before LUTTIG, MOTZ, and TRAXLER, Circuit Judges.



Affirmed in part and dismissed in part by unpublished per curiam
opinion.


                            COUNSEL

Thomas W. Smith, Charleston, West Virginia, for Appellant. Rebecca
A. Betts, United States Attorney, Steven I. Loew, Assistant United
States Attorney, Charleston, West Virginia, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                     UNITED STATES v. METHENEY
                              OPINION

PER CURIAM:

   Carl Metheney pled guilty to possession of a firearm after a misde-
meanor conviction of domestic violence, 18 U.S.C.A. § 922(g)(9)
(West 2000) (Count One), and possession of a firearm with an obliter-
ated serial number, 18 U.S.C.A. § 922(k) (West 2000). He appeals the
sentence of fifty-seven months imprisonment he received, alleging
that the district court erred in calculating his base offense level under
U.S. Sentencing Guidelines Manual § 5K2.1(a)(4)(B) (1998), in fail-
ing to depart downward based on the totality of the circumstances,
and in failing to recognize its authority to depart based on extraordi-
nary family circumstances, USSG § 5H1.6, p.s., and his actual inno-
cence of the prior misdemeanor domestic violence conviction. We
affirm in part, and dismiss in part.

   In 1997, Carl Metheney pled no contest to a West Virginia charge
of domestic battery and was fined $100. The conviction was based on
his wife’s allegation that he had burned her arm with a cigarette.
However, during a hearing on the revocation of Metheney’s bond dur-
ing the prosecution of the instant offense, she testified that he had not
burned her intentionally. In September 1999, Metheney was charged
with a number of federal firearms offenses. He pled guilty to posses-
sion of firearms after being convicted of a misdemeanor crime of
domestic violence, and possession of a firearm with an obliterated
serial number.

  The district court determined that Metheney’s base offense level
was 20 under USSG § 2K2.1(a)(4)(B) because he was a "prohibited
person,"1 and the offense involved both a firearm described in 26
U.S.C. § 5845(a) (1994) (a short-barreled shotgun), and a firearm
described in 18 U.S.C.A. § 921(a)(30) (West 2000) (a TEC-DC9).
    1
    Application Note 6 to § 2K2.1 defines a "prohibited person," as used
in subsection (a)(4)(B), as including a defendant who has been convicted
in any court of a misdemeanor crime of domestic violence as defined in
18 U.S.C.A. § 921(a)(33) (West 2000).
                     UNITED STATES v. METHENEY                       3
Possession of either firearm by a prohibited person triggers the
enhanced base offense level.2 USSG § 2K2.1(a)(4)(B).

   Metheney objected that the TEC-DC9 should not be considered a
basis for the enhanced base offense level because guideline Amend-
ment 522, which added the firearms listed in § 921(a)(30) to USSG
§ 2K2.1(a)(4)(B), was in conflict with 18 U.S.C.A. § 922(v)(2) (West
2000). Title 18, § 922(v)(1), provides that it is unlawful to possess a
semiautomatic assault weapon. Subsection (v)(2) provides that, "Para-
graph (1) shall not apply to the possession or transfer of any semiau-
tomatic assault weapon otherwise lawfully possessed under Federal
law on the date of the enactment of this subsection." Subsection (v)
was added by Pub. L. 103-322, which went into effect on September
13, 1994. At Metheney’s sentencing hearing, the government stipu-
lated that Metheney acquired his semiautomatic assault weapon
before his misdemeanor domestic violence conviction from someone
who lawfully owned the gun before the effective date of § 922(v).

   Metheney also requested a downward departure on the following
grounds: (1) that he was actually innocent of the domestic violence
offense; (2) that, due to its lack of a quorum in 1998 and 1999, the
Sentencing Commission had been unable to determine whether the
sentencing range for his offense was appropriate; (3) his extraordinary
family circumstances; and (4) the totality of the circumstances.

  The district court concluded that Metheney’s argument was without
merit, and that base offense level 20 applied under § 2K2.1(a)(4)
because Metheney had possessed a semiautomatic assault weapon
while he was a prohibited person. The court also declined to depart
on any of the grounds put forward by Metheney.

   On appeal, Metheney renews his argument that the Sentencing
Commission exceeded its authority in creating an enhancement for
possession of a semiautomatic assault weapon by a prohibited person
without including an exception for a weapon that was lawfully owned
on the date § 922(v) went into effect, similar to the exception in
§ 922(v)(2). He relies on United States v. LaBonte, 520 U.S. 751, 757
  2
   As a prohibited person, Metheney’s base offense level would have
been 14 without the contested enhancement. USSG § 2K2.1(a)(6).
4                    UNITED STATES v. METHENEY
(1997), for the principle that, when the sentencing guidelines conflict
with a federal statute, the statute controls. LaBonte held that Amend-
ment 506, which amended the commentary to USSG § 4B1.1 to pre-
clude consideration of statutory enhancements in calculating the
"offense statutory maximum," conflicted with the directive in 28
U.S.C.A. § 994(h) (West 1993 & Supp. 2000), that the Sentencing
Commission assure that certain repeat offenders receive a sentence at
or near the maximum term authorized. Metheney also cites United
States v. Palmer, 183 F.3d 1014, 1017 (9th Cir. 1999), which held
that it was error to use a prior drug conviction for which the defen-
dant’s civil rights had been restored to justify an enhanced base
offense level under § 2K2.1(a)(4)(A), even though the commentary to
§ 5K2.1 and § 4A1.2 together require consideration of such a convic-
tion. See USSG § 5K2.1, comment. (n.5); USSG § 4A1.2, comment.
(n.10).

   However, Metheney has not identified a conflict as clear as those
at issue in LaBonte and Palmer. Section 922(v) does not address pos-
session of a semiautomatic assault weapon by a prohibited person.
The exception in § 922(v)(2) is thus of benefit only to a person who
has not lost his right to possess any firearm because of one of the
events listed in § 922(g). Viewed in this light, there is no conflict
between § 922(v) and § 2K2.1(a)(4)(B). Therefore, the district court
did not err in computing a base offense level of 20.

   A sentencing court’s refusal to depart downward is not reviewable
on appeal when the district court recognizes its authority to depart but
decides that the facts and circumstances do not warrant departure.
United States v. Brock, 108 F.3d 31, 33 (4th Cir. 1997). The record
discloses that the district court considered Metheney’s request for a
departure based on the totality of the circumstances in his case and
decided against a departure. The sentencing court’s decision not to
depart is thus not reviewable, and we dismiss this portion of the
appeal. United States v. Bayerle, 898 F.2d 28, 32 (4th Cir. 1990).

   An appellate court may review the district court’s refusal to depart
downward when the court mistakenly believed that it lacked authority
to depart. United States v. Edwards, 188 F.3d 230, 238 (4th Cir.
1999), cert. denied, 528 U.S. 1130 (2000). Metheney contends that
the district court did not seriously consider a departure based on the
                      UNITED STATES v. METHENEY                        5
negative effects of his incarceration on his wife and daughter because
the court believed that a departure on this ground would never be
affirmed by the Fourth Circuit. This claim is also unsupported by the
record. The district court made detailed findings explaining that the
hardships Metheney’s incarceration would cause his family were not
sufficiently extraordinary to warrant a departure. There is no indica-
tion that the district court believed that it lacked authority to depart
on this ground in an appropriate case. Therefore, this claim fails.

   We find that the district court correctly decided that it lacked the
authority to depart based on Metheney’s alleged actual innocence of
the domestic violence offense. The commentary to USSG § 4A1.2
specifically provides that the defendant does not have a right to collat-
erally attack a prior conviction at the sentencing hearing. USSG
§ 4A1.2, comment. (n.6). While any factor that is not forbidden as a
ground for departure may support a departure under Koon v. United
States, 518 U.S. 81, 106 (1996), Metheney’s actual innocence was not
an established fact. Mrs. Metheney had given conflicting statements
about the incident that led to her husband’s conviction for abuse. The
district court would have had to make a factual finding that Metheney
had not actually abused his wife before it could consider a departure
on that ground. Therefore, whether deliberate or not, Metheney’s
request for a departure for actual innocence was a collateral attack on
his prior conviction, and the district court correctly determined that
it lacked authority to depart on that ground.

   We therefore affirm the sentence. We dismiss that portion of the
appeal that contests the district court’s decision not to depart based on
the totality of the circumstances. 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 IN PART, DISMISSED IN PART
