                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 07-4601



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


FREDDIE EVANS, JR.,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Chief
District Judge. (1:06-cr-00165-1)


Submitted:   July 31, 2008                 Decided:   August 20, 2008


Before WILKINSON, TRAXLER, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


S. Mason Preston, PRESTON & WEESE, L.C., Lewisburg, West Virginia,
for Appellant. Charles T. Miller, United States Attorney, Miller A.
Bushong, III, Assistant United States Attorney, Beckley, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Freddie Evans, Jr., pled guilty, pursuant to a plea

agreement, to one count of conspiracy to distribute five kilograms

or more of cocaine and fifty or more grams of cocaine base, in

violation of 21 U.S.C. § 846 (2000) (“Count One”); and to one count

of conspiracy to commit money laundering, in violation of 18 U.S.C.

§ 1956(h) (2000) (“Count Two”). The district court sentenced Evans

to 288 months’ imprisonment for Count One, to run concurrently with

a term of 240 months’ imprisonment for Count Two.                       Evans now

appeals   the    district       court’s   judgment,    challenging       only   his

sentence.     For the following reasons, we affirm.

              On appeal, Evans essentially argues that the district

court   erred    in    denying    his   motion   for   a   downward     departure,

pursuant to U.S. Sentencing Guidelines Manual § 4A1.3 (2006), on

the basis that his criminal history category over-represented the

seriousness of his criminal history.             However, a district court’s

failure to grant a downward departure is not reviewable unless the

court   was    under    the    mistaken   impression       that   it   lacked   the

authority to depart.          United States v. Brewer, 520 F.3d 367, 371

(4th Cir. 2008).       Here, the district court clearly understood its

authority to depart.          Accordingly, this claim is not cognizable on

appeal.

              We affirm the district court’s judgment.                 We dispense

with oral argument because the facts and legal contentions are


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adequately presented in the materials before the court and argument

would not aid the decisional process.


                                                          AFFIRMED




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