                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4930



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


RALPH JAMES MANNS,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver, Jr.,
District Judge. (CR-04-200)


Submitted:   May 26, 2006                   Decided:   June 7, 2006


Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed in part; affirmed in part by unpublished per curiam
opinion.


Herbert L. Hively, II, Hurricane, West Virginia, for Appellant.
Philip H. Wright, Acting United States Attorney, Steven I. Loew,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Ralph James Manns appeals from his sixty-three month

sentence imposed pursuant to his guilty plea to possession of a

firearm by a felon.       On appeal, he asserts that the district court

erred by denying his motion for a downward departure based on his

diminished     capacity    under   U.S.    Sentencing      Guidelines   Manual

§   5K2.13    (2004).      He   also    contends    that   his   sentence   was

unreasonable because the district court did not properly consider

his diminished mental capacity.                We dismiss Manns’ guidelines

challenge, as the district court’s decision is not appealable, and

affirm Manns’ sentence.

             Manns first alleges that the district court should have

granted him a downward departure for diminished capacity under

§ 5K2.13, p.s.      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) (collecting cases declining to review a district court’s

decision not to depart, even after United States v. Booker, 543

U.S. 220 (2005)).       Here, the district court clearly understood its

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

appeal.




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            Next, Manns contends that his sentence was unreasonable,

because the district court should have departed below the advisory

guideline range based on his limited mental capacity.                    Unlike a

departure    request     denied    while        calculating    the   appropriate

guideline range, a request for a departure below the advisory

guideline range is reviewable. United States v. Montes-Pineda, 445

F.3d 375 (4th Cir. 2006).         However, a sentence within a properly

calculated guideline range is presumptively reasonable.                    United

States v. Green, 436 F.3d 449, 457 (4th Cir. 2006), cert. denied,

__ U.S. __, 2006 WL 1057741 (U.S. May 22, 2006) (No. 05-10474).                 A

defendant can only rebut the presumption by demonstrating that the

sentence is unreasonable when measured against the factors in 18

U.S.C.A. § 3553(a) (West 2000 & Supp. 2005).                  Montes-Pineda, 445

F.3d at 375.

            Here, the district court explicitly considered Manns’

significant criminal history (18 U.S.C. § 3553(a)(1), (2)(C)); his

medical and mental infirmities (18 U.S.C. § 3553(a)(1), (2)(D));

and his inability to pay a fine (18 U.S.C. § 3553(a)(3)), when

deciding to sentence him at the bottom end of the guideline range.

In   addition,   Manns    has     not    shown     how   his    mental   capacity

necessarily outweighed the seriousness of his offense and his

undisputed recidivism.       As such, he has failed to show that his

sentence was unreasonable.        See Montes-Pineda, 445 F.3d at 375.




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          Accordingly, we dismiss Manns’ appeal from the denial of

his motion to depart under § 5K2.13 and affirm his sentence.     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.



                                                 DISMISSED IN PART;
                                                   AFFIRMED IN PART




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