UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 98-4862

STEVE C. OVERMAN,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CR-96-154-MU)

Submitted: May 28, 1999

Decided: July 6, 1999

Before WILKINS and TRAXLER, Circuit Judges,
and HALL, Senior Circuit Judge.

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Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.

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COUNSEL

Michael S. Scofield, LAW OFFICES OF SCOFIELD & ROGERS,
Charlotte, North Carolina, for Appellant. Mark T. Calloway, United
States Attorney, Brian Lee Whisler, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Steve C. Overman was convicted by a jury of conspiracy to possess
with intent to distribute and distribute Dilaudid, see 21 U.S.C. § 846
(1994), and was sentenced to a term of seventy-eight months impris-
onment. Overman appeals his sentence, alleging that the district court
mistakenly believed it lacked authority to depart downward because
of his age (sixty-nine) and his poor health. See U.S. Sentencing
Guidelines Manual § 5H1.1, p.s., § 5H1.4, p.s. (1998). He also con-
tends that the testimony of certain government witnesses should have
been excluded under the federal bribery statute, see 18 U.S.C.
§ 201(c)(2) (1994), and that the sentencing scheme set forth in the
sentencing guidelines for offenses involving Dilaudid violates due
process and equal protection. We affirm Overman's conviction and
find that his constitutional challenge to the sentence is without merit.
We find that the district court erred in concluding that Fourth Circuit
precedent precluded a departure. Therefore, we vacate the sentence
and remand for further proceedings.

During an investigation into Dilaudid distribution in Gaston
County, North Carolina, state and federal drug agents monitored two
transactions involving Steve Overman. On January 5, 1995, Overman
bought 500 Dilaudid pills from Bobby Black, a long-time Dilaudid
dealer who had begun cooperating with authorities. On August 1,
1996, Lisa Campbell bought ten Dilaudid pills from Overman while
under surveillance. At the time, she was working as a confidential
informant for an agent with a federal drug task force.

Overman was indicted for conspiracy and went to trial in July 1998
with three co-defendants. Co-defendants Bobby Campbell, Bobby
Black, and James Somerset entered guilty pleas and testified against
Overman at trial. James Thompson and Lisa Campbell, both unindic-
ted conspirators, also testified against Overman. The district court

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denied Overman's motion to suppress the testimony of all witnesses
who were testifying pursuant to guilty pleas in reliance on United
States v. Singleton, 144 F.3d 1343 (10th Cir. 1998), rev'd en banc,
165 F.3d 1297 (10th Cir. 1999), petition for cert. filed, Mar. 31, 1999
(No. 98-8758), and denied his motion in limine to exclude Lisa
Campbell's testimony on the ground that his sale to Campbell was
unrelated to the charged conspiracy.

At sentencing, the district court found that the Dilaudid sentencing
scheme had an articulable rational basis and denied Overman's
motion for a finding that the conversion table was unconstitutional.
With regard to the requested departure, the district court found that
both age and health were factors which had been considered by the
Sentencing Commission, but which were possible grounds for depar-
ture. The court further found that Overman suffered from diabetes,
heart disease, a tumor (benign) behind his eye, prostate problems, and
poorly controlled high blood pressure. The court found that Overman
had an extraordinary physical impairment and, in the court's view,
qualified for a downward departure. However, the court decided not
to depart, stating that a departure would not likely be affirmed and
there was thus no legal basis for a departure. The court imposed a sen-
tence of seventy-eight months imprisonment, the low end of the
guideline range.

We first consider the district court's decision not to depart below
the guideline range on the basis of Overman's physical condition.1
This court lacks authority to review the decision of a district court not
to depart from the guideline range when that decision rests upon a
determination that a departure is not warranted. See United States v.
Brock, 108 F.3d 31, 33 (4th Cir. 1997). However, this court may
review the decision of a district court not to depart when that determi-
nation is grounded upon a belief that the court lacks the legal author-
ity to depart. See id.
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1 The defense sought a departure on the basis of age as well as physical
condition. However, because the age policy statement, § 5H1.1, is essen-
tially subsumed by the physical condition policy statement, § 5H1.4, we
will discuss only the latter.

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Under the test set out in Koon v. United States , 518 U.S. 81, 94-96
(1996), if a factor is a discouraged basis for departure, a departure is
still permissible "if the factor is present to an exceptional degree or
in some other way makes the case different from the ordinary case
where the factor is present." Id. at 34-35. Guideline section 5H1.4
states in pertinent part:

          Physical condition . . . is not ordinarily relevant in determin-
          ing whether a sentence should be outside the applicable
          guideline range. However, an extraordinary physical impair-
          ment may be a reason to impose a sentence below the appli-
          cable guideline range; e.g., in the case of a seriously infirm
          defendant, home detention may be as efficient as, and less
          costly than, imprisonment.

In this case, the district court made the following finding:

          The Court finds from the evidence that Mr. Overman suffers
          from the following: diabetes [mellitus], for which he is
          under medication; severe coronary artery disease; a tumor
          behind his eye which continues to bleed; he's had a prosta-
          tectomy, he's suffered from prostate, the sequelae of which
          is unknown at this time; he has severe ischemic cardiomyo-
          pathy, which explains why he is short of breath; he has
          poorly controlled hypertension.

          The Court finds in this case that home de[tent]ion would be
          just as effective and more cost effective. Nevertheless,
          despite the fact that the Court believes that Mr. Overman
          qualifies for a finding and the Court finds that he does have
          an extraordinary physical impairment, nevertheless, as the
          Court understands the ext[a]nt Fourth Circuit jurisprudence,
          the Court does not believe that this finding would be
          affirmed and would be upheld on appeal.

          So despite the factual findings, the Court finds that those
          factual findings do not give the Court a legal basis upon
          which to exercise discretion to depart downward.

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The district court's words leave no doubt that its decision not to
depart rested on the legal conclusion that Fourth Circuit law would
not allow a departure under the circumstances, not on a decision by
the court that a departure was not warranted. Accordingly, the deci-
sion not to depart is subject to this court's review. See Brock, 108
F.3d at 33.

The district court's decision that its findings did"not give it a legal
basis upon which to exercise discretion to depart downward" was
clearly erroneous. Section 5H1.4 makes clear that a departure is
allowed for extraordinary physical condition, particularly when
"home detention may be as efficient as, and less costly than, impris-
onment." Here, the government does not challenge any of the district
court's factual findings. Because the district court incorrectly found
that it lacked the authority to depart, we vacate the sentence on this
ground and remand so that the district court may decide whether or
not to exercise its discretion to depart downward. See Brock, 108 F.3d
at 35.

Overman next contends that Lisa Campbell's testimony should
have been excluded under Singleton because she received $350 for
her cooperation. He recognizes that Singleton has now been reversed,
but contends that the payment to her violated the federal bribery stat-
ute, 18 U.S.C. § 201(c)(2), which prohibits giving "anything of value"
to a witness in return for his or her testimony. Overman asserts that
the payment for Campbell's cooperation necessarily contemplated her
later testimony about the incident. Because Overman did not make
this specific argument with regard to Lisa Campbell's testimony in
the district court, the argument is reviewed for plain error. See United
States v. Olano, 507 U.S. 725, 732 (1993) (error must have occurred
which was plain and affected defendant's substantial rights, and
which requires correction to protect fairness, integrity, or public repu-
tation of judicial proceedings). This circuit has not adopted the rea-
soning of the original Singleton panel decision and will not do so in
this case. Consequently, we find that the district court did not commit
plain error in failing to exclude Lisa Campbell's testimony. For the
same reason, we find that the district court did not err in denying
Overman's motion to exclude the testimony of the government wit-
nesses who testified pursuant to plea agreements.

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Finally, Overman contends that there is no rational basis for the
distinction made in the Drug Equivalency Tables set out in USSG
§ 2D1.1 between Dilaudid and heroin. The Tables convert one gram
of Dilaudid to 2.5 kilograms of marijuana, but convert one gram of
heroin to one kilogram of marijuana. See USSG § 2D1.1, comment.
(n.10). Overman was held responsible for 250 Dilaudid pills, making
his base offense level 28. A one-to-one conversion to marijuana
equivalent would have lowered his base offense level to 26.

Dilaudid is a synthetic painkiller "which produces effects similar
to heroin's." United States v. Crowell, 9 F.3d 1452, 1453 (9th Cir.
1993). Application Note 20 provides the following general explana-
tion for the differing base offense levels in § 2D1.1:

         The base offense levels in § 2D1.1 are either provided
         directly by the Anti-Drug Abuse Act of 1986 or are propor-
         tional to the levels established by statute, and apply to all
         unlawful trafficking. Levels 32 and 26 are the distinctions
         provided by the Anti-Drug Abuse Act; however, further
         refinement of drug amounts is essential to provide a logical
         sentencing structure for drug offenses. To determine these
         finer distinctions, the Commission consulted numerous
         practitioners, including authorities at the Drug Enforcement
         Administration, chemists, attorneys, probation officers, and
         members of the Organized Crime Drug Enforcement Task
         Forces, who also advocate the necessity of these distinc-
         tions.

USSG § 2D1.1, comment. (n.20).

In his motion for a declaration of unconstitutionality and at sen-
tencing, Overman apparently presumed that heroin and Dilaudid were
exact chemical equivalents and this presumption was never chal-
lenged. However, Overman offered no evidence to support the pre-
sumption. The district court found that, because Dilaudid is
manufactured legally and must be stolen from the manufacturers, the
added level of criminality justified a more severe sentence for
Dilaudid offenses. We need not decide whether this view is correct,
as Overman has not shown that he has any basis for challenging the

                   6
Sentencing Commission's decision to treat heroin and Dilaudid differ-
ently.

We therefore affirm Overman's conviction and reject his constitu-
tional challenge to his sentence. However, we vacate the sentence and
remand the case so that the district court may decide whether or not
to exercise its discretion to depart downward. 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 IN PART, VACATED IN PART,
AND REMANDED

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