                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                                No. 00-4682
RANDY REYNOLDS,
             Defendant-Appellant.
                                       
           Appeal from the United States District Court
       for the Northern District of West Virginia, at Elkins.
            Robert Earl Maxwell, Senior District Judge.
                            (CR-98-8)

                      Submitted: January 26, 2001

                      Decided: February 6, 2001

      Before WIDENER and MICHAEL, Circuit Judges, and
              HAMILTON, Senior Circuit Judge.



Affirmed in part and dismissed in part by unpublished per curiam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


                             COUNSEL

Timothy M. Sirk, Keyser, West Virginia, for Appellant. Melvin W.
Kahle, Jr., United States Attorney, Sherry L. Muncy, Assistant United
States Attorney, Elkins, West Virginia, for Appellee.
2                     UNITED STATES v. REYNOLDS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   Randy Reynolds was convicted by a jury of one count of posses-
sion of a weapon by a convicted felon in violation of 18 U.S.C.A.
§ 922(g) (West 2000). On appeal, Reynolds contends that the district
court erred by not departing downward from the sentencing guide-
lines’ range for aberrant behavior and an over representation of his
criminal history. We hold that the court did not err by not departing
downward for aberrant behavior. We further hold that the court’s
decision not to depart on the basis that Reynolds’ criminal history
over represented his prior criminal conduct is not reviewable by this
court. Accordingly, we affirm in part and dismiss in part.

   Reynolds had an extensive criminal history. At sentencing, the dis-
trict court denied Reynolds’ motion to depart downward for aberrant
behavior on the basis that such a departure is not warranted if the con-
viction is not the defendant’s first offense. In United States v. Glick,
946 F.2d 335 (4th Cir. 1991), this court stated that:

    [f]ollowing congressional direction, the Sentencing Com-
    mission designed the guidelines to produce an appropriate
    sentence for a first offender. See 28 U.S.C.A. § 994(j) (West
    Supp. 1991). Aberrant behavior, therefore, means something
    more than merely a first offense. A single act of aberrant
    behavior suggests "a spontaneous and seemingly thoughtless
    act rather than one which was the result of substantial plan-
    ning because an act which occurs suddenly and is not the
    result of a continued reflective process is one for which the
    defendant may be arguably less accountable."

Id. at 338 (quoting United States v. Carey, 895 F.2d 318, 325 (7th Cir.
1990)). Reynolds was not eligible for a reduction in the offense level
for aberrant behavior because the conviction was not Reynolds’ first
                      UNITED STATES v. REYNOLDS                       3
offense. See United States v. Withrow, 85 F.3d 527, 531 (11th Cir.
1996) (departure is appropriate if defendant is "a first-time offender
and the crime was a spontaneous and thoughtless act rather than one
which was the result of substantial planning"); United States v.
Grandmaison, 77 F.3d 555, 563 (1st Cir. 1996) (departure for aber-
rant behavior is available to first-time offenders). Accordingly, we
affirm the court’s decision not to depart for aberrant behavior.

   Reynolds also moved for a downward departure on the basis that
his criminal history category over represented the seriousness of his
prior criminal conduct. The district court thoroughly reviewed its
authority and discretion to depart outside the range established by the
sentencing guidelines. The court found that Reynolds’ prior criminal
convictions were already taken into consideration by the sentencing
guidelines. The court concluded upon a thorough review of the record
that there were no factors present that took Reynolds’ case out of the
heartland of cases.

   A sentencing court’s denial of a request for a downward departure
is reviewable only when the sentencing court bases its decision on
"the mistaken view that it lacked the authority to depart." United
States v. Bayerle, 898 F.2d 28, 31 (4th Cir. 1990). In the instant case,
the district court recognized its authority to depart downward, but
declined. Accordingly, this claim is not reviewable and is dismissed.

   For the reasons discussed, we affirm the court’s decision not to
depart downward for aberrant behavior and we dismiss as unreview-
able Reynolds’ claim that the court erred by not departing downward
on the basis that his criminal history category over represented his
prior criminal conduct. 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
