UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 97-4493

TOBIN KINDER,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 97-4533

SAMANTHA GILPIN, a/k/a Sam,
Defendant-Appellant.

Appeals from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CR-97-11)

Submitted: February 24, 1998

Decided: December 31, 1998

Before MURNAGHAN, NIEMEYER, and MICHAEL,
Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

John J. Pizzuti, CAMILLETTI, SACCO & PIZZUTI, Wheeling, West
Virginia, for Appellant Kinder; Robin M. Crum, Moundsville, West
Virginia, for Appellant Gilpin. William D. Wilmoth, United States
Attorney, Thomas D. Mucklow, Assistant United States Attorney,
Martinsburg, West Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Tobin Kinder pleaded guilty to distribution of crack cocaine in vio-
lation of 21 U.S.C. § 841(a)(1) (1994). Kinder was sentenced to
eighty months imprisonment and three years supervised release.
Kinder contends that the district court erred in failing to downwardly
depart from the applicable guideline range because it believed that it
lacked the authority to grant a departure. Samantha Gilpin pleaded
guilty to distribution of crack cocaine within 1000 feet of a protected
location in violation of 21 U.S.C. §§ 841(a)(1), 860 (1994). Gilpin
was sentenced to thirty-seven months imprisonment and five years
supervised release. Gilpin contends that the district court erred in
awarding a two-level enhancement under U.S. Sentencing Guidelines
Manual § 2D1.2(a)(1) (1995). Finding no error, we affirm.

I

Prior to sentencing, Kinder moved for a downward departure under
U.S. Sentencing Guidelines Manual § 5H1.4 (1995), asserting that his
severe medical impairments warranted a departure below the applica-
ble guideline range. He asserted that he suffered from alcohol and
drug dependencies, hepatitis, and cirrhosis of the liver. The district
court denied the motion, finding that Kinder's drug and alcohol

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dependence and medical condition were not extraordinary conditions
warranting a departure. The district court specifically noted that
USSG § 5H1.4 provided that alcohol and drug dependence is not a
basis for departing below the applicable guideline range. Kinder
timely noted an appeal.

On appeal, Kinder contends that the district court erroneously
determined that it did not have the authority to depart downward
based on Kinder's alcohol and drug dependency and medical condi-
tion. He asserts that the district court's statement at sentencing that
"even if I had the authority--even though I might have the authority
to grant departure" demonstrates that the district court believed it
lacked authority to depart.

A decision not to depart is normally not appealable. See United
States v. Bayerle, 898 F.2d 28, 31 (4th Cir. 1990). However, an
appeal may be entertained if the district court's decision was based on
an erroneous belief that it lacked the legal authority to depart. See
United States v. Hall, 977 F.2d 861, 863 (4th Cir. 1992).

The sentencing transcript reveals that the district court heard argu-
ment on whether Kinder's dependencies and medical condition con-
stituted an extraordinary physical impairment. The district court
specifically found that, under USSG § 5H1.4, Kinder's dependencies
did not warrant a departure. Further, the district court distinguished
United States v. Greenwood, 928 F.2d 645 (4th Cir. 1991), the author-
ity on which Kinder relied, and found that Kinder's medical condition
did not constitute an extraordinary physical impairment. We find that
the district court considered Kinder's physical condition as a basis for
a possible departure but found that the facts of this particular case did
not warrant a departure on that basis. Therefore, Kinder is precluded
from appealing the district court's refusal to downwardly depart based
on his physical condition. See Bayerle, 898 F.2d at 31.

II

In the written plea agreement and at the rearraignment hearing, Gil-
pin reserved the right to argue at sentencing that the Marshall County
Head Start Program ("Program") was not a protected location under
21 U.S.C. § 860 because it was not a school. The district court over-

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ruled Gilpin's objection, finding that the Program was a school. The
district court further found that the Program resembles and follows
many of the principles that one would apply to an elementary school
or public kindergarten; therefore, the benefit of the drug-free zone
created by § 860 and afforded to the schools enumerated in the statute
should apply to this location as well. Gilpin timely noted an appeal.

On appeal, Gilpin contends that the district court erred in awarding
a two-level enhancement under USSG § 2D1.2(a)(1), based on its
finding that the offense occurred within 1000 feet of a protected loca-
tion, the Program. Gilpin concedes that she distributed crack cocaine
within 1000 feet of the Program and that under § 860, public and pri-
vate elementary, vocational, and secondary schools are protected
locations. Gilpin, however, asserts that the Program is not a school,
but rather, it is an extension of the local welfare department.

We review factual issues regarding application of the guidelines
under a clearly erroneous standard. See United States v. Daughtrey,
874 F.2d 213, 217 (4th Cir. 1989). We review legal issues involving
application of the guidelines de novo. See id. To the extent that the
issue before the court is more factual than legal, the standard of
review approaches that of review for clear error.

We hold that the district court did not clearly err in finding that the
Program was a school. Although the Program has some purposes
other than education, it resembles and follows many of the principles
that one would apply to an elementary or public kindergarten. The
Program operates on a 128-day calendar year, from September to
May. The children enrolled in the Program are between the ages of
three and five, and they attend the Program five hours a day, four
days a week. The children are involved in developmental activities
that are designed to improve their thinking ability and cognitive
development. The Program employs a teacher and an assistant
teacher. Thus, we reject this claim. See Daughtrey, 874 F.2d at 217.

III

We affirm Kinder's and Gilpin's sentences. We dispense with oral
argument because the facts and legal contentions are adequately pre-

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sented in the materials before the court and argument would not aid
the decisional process.

AFFIRMED

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