UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 98-4369

CHARLES E. MULKEY,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CR-97-278)

Submitted: October 27, 1998

Decided: November 23, 1998

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

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Robert H. Deaderick, Jr., Fredericksburg, Virginia, for Appellant.
Helen F. Fahey, United States Attorney, N. George Metcalf, Assistant
United States Attorney, Richmond, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Charles E. Mulkey appeals his sentence imposed after a plea of
guilty to conspiracy to conduct financial transactions with proceeds
of a specified unlawful activity, in violation of 18 U.S.C. § 371
(1994). We affirm.

Mulkey's sentencing was originally set for March 16, 1998, but
was rescheduled for April 29, 1998, on account of Mulkey's medical
problems. Mulkey's attorney moved for a continuance of the April 29
sentencing hearing based on an assertion that Mulkey had scheduled
bypass heart surgery. The court rejected this motion at the sentencing
hearing, and also overruled Mulkey's objections to the presentence
investigation report (PSR). The court, based on the PSR, set Mulkey's
offense level at twenty-three and his criminal history category at two,
leading to a sentencing range of fifty-one to sixty months under the
U.S. Sentencing Guidelines Manual ch. 5, pt. A (1997).

At the sentencing hearing, the district court allowed Mulkey to
speak on his own behalf. Mulkey requested that he be able to undergo
"double bypass" surgery prior to surrendering to custody. The court
requested documentation that such surgery was scheduled, which
Mulkey's attorney was unable to provide the court. The court
recessed in order to itself telephone Mulkey's physicians about the
operation. Mulkey's physicians told the court that Mulkey was sched-
uled for a bypass operation on his legs and that he should be fully
recovered in about two weeks, but that "Mulkey will tell you differ-
ent." The court then resumed the sentencing hearing, and stated that
Mulkey's earlier motion for a continuance based on counsel's asser-
tion that Mulkey had scheduled heart bypass surgery was "a lie, just
a flat-out lie." The court sentenced Mulkey to sixty months' imprison-
ment, but allowed him approximately four weeks to self-report to cus-
tody in order to allow time for Mulkey's surgery and recovery.

On appeal, Mulkey contends that he was unduly prejudiced at his
sentencing because the district court considered misinformation and
vindictive information regarding Mulkey's need for surgery in decid-
ing to impose sentence at the top end of the guidelines range. Specifi-

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cally, Mulkey contends that the district court allowed counsel's
misrepresentation about Mulkey's surgery, and Mulkey's physician's
statement, to influence its sentencing determination. Because Mulkey
did not object to the sentence in the district court, our review is lim-
ited to plain error. See United States v. Olano , 507 U.S. 725, 731-32
(1993).

Mulkey's sentence was within both the statutory and the guideline
range. See 18 U.S.C. §§ 371, 1956(a)(3)(B) (1994); USSG ch. 5, pt.
A. Mulkey does not claim nor does our review of the record indicate
that the sentencing range was incorrectly computed. See USSG
§§ 2S1.1(a)(2), (b)(1), 2X1.1(a), 4A1.1, 4A1.2. The review of sen-
tences is limited to those "imposed in violation of law" or those "im-
posed as a result of an incorrect application of the sentencing
guidelines." See 18 U.S.C. § 3742(a)(1)-(2) (1994); United States v.
Speed, 53 F.3d 643, 647 (4th Cir. 1995); United States v. Porter, 909
F.2d 789, 794-95 (4th Cir. 1990). Because Mulkey's sentence was
within a correctly calculated guidelines range, his sentence is not
appealable. See Porter, 909 F.2d at 794-95. We note further that there
is no indication from the record that the district court considered
Mulkey's counsel's alleged misrepresentations or any"vindictive"
information in determining Mulkey's sentence.

We affirm Mulkey's sentence. We dispense with oral argument
because the facts and legal contentions are adequately set forth in the
materials before the court and argument would not aid the decisional
process.

AFFIRMED

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