                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 06-5250



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


CARL ANTONIO ROBINSON,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg.  Norman K. Moon, District
Judge. (6:06-cr-00012-nkm-2)


Submitted:     May 25, 2007                    Decided:   July 9, 2007


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


Affirmed by unpublished per curiam opinion.


Michelle C.F. Derrico, COPENHAVER, ELLETT & DERRICO, Roanoke,
Virginia, for Appellant. John L. Brownlee, United States Attorney,
Edward A. Lustig, Assistant United States Attorney, Roanoke,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Following    a   bench   trial,   Carl   Antonio   Robinson     was

convicted   of   one    count   of   distribution    of   cocaine   base,   in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (2000); one count

of distribution or aiding and abetting in distribution of cocaine

base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); and one

count of possession of a firearm by a convicted felon, in violation

of 18 U.S.C. § 922(g)(2000).           Robinson was also convicted of one

count of conspiracy to distribute five or less grams of cocaine

base, in violation of 21 U.S.C. § 846 (2000).             The district court

sentenced Robinson to seventy months’ imprisonment.            Robinson now

appeals   the    district    court’s    judgment,    challenging    only    his

sentence.    For the reasons that follow, we affirm.

            Robinson first asserts that his Sixth Amendment rights

were violated because the district court, instead of the jury,

determined the drug weight used in calculating Robinson’s advisory

guideline range.       However, because the district court sentenced

Robinson under an advisory guideline scheme, no Sixth Amendment

error occurred.     See United States v. Hughes, 401 F.3d 540, 546

(4th Cir. 2005) (in post-Booker* sentencing, district court should

make all factual findings appropriate to determination of advisory

guideline range).




     *
      United States v. Booker, 543 U.S. 220 (2005).

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            Robinson also argues that the district court’s finding of

the drug weight used in calculating his advisory guideline range

was not supported by the preponderance of the evidence.            We review

findings of fact related to a district court’s application of the

sentencing guidelines for clear error. United States v. Green, 436

F.3d 449, 456 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006).

This deferential standard of review requires reversal only if this

court is “left with the definite and firm conviction that a mistake

has been committed.” United States v. Stevenson, 396 F.3d 538, 542

(4th Cir. 2005) (quoting Anderson v. Bessemer City, 470 U.S. 564,

573 (1985)). Because trial testimony supports the district court’s

calculations of drug weight, the district court did not clearly err

in making these factual findings.        See United States v. Lamarr, 75

F.3d 964, 972 (4th Cir. 1996) (noting that approximation of amount

of drugs for sentencing not clearly erroneous if supported by

competent record evidence).

            Finally, Robinson alleges that the district court should

have granted him a downward departure for diminished capacity

pursuant to U.S. Sentencing Guidelines Manual § 5K2.13, p.s.

(2005).    However, a district court’s failure to grant a downward

departure is not reviewable unless a district court was under the

mistaken impression that it lacked the authority to depart. United

States v. Matthews, 209 F.3d 338, 352 (4th Cir. 2000); see also

United    States   v.   Cooper,   437   F.3d   324,   333   (3d   Cir.   2006)


                                   - 3 -
(collecting cases declining to review a district court’s decision

not to depart, even after Booker).      Here, the district court

clearly understood its authority to depart.      Accordingly, this

claim is not cognizable on appeal.

          We therefore affirm the district court’s judgment.    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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