UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4178

ROBERT JEROME MURCHISON,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of North Carolina, at Durham.

Frank W. Bullock, Jr., Chief District Judge.

(CR-94-89)

Submitted: August 20, 1996

Decided: September 12, 1996

Before WIDENER and HAMILTON, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Walter T. Johnson, Jr., Greensboro, North Carolina, for Appellant.

Walter C. Holton, Jr., United States Attorney, Paul Alexander Weinman, Assistant United States Attorney, Greensboro, North Carolina,

for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

A grand jury charged Robert Jerome Murchison with one count of

conspiracy to possess more than fifty grams of cocaine base "crack"

and more than fifty grams of cocaine hydrochloride in violation of 21

U.S.C. § 846 (1988) and 21 U.S.C. § 841(b)(1)(a), and he pled not

guilty. Three months later, the Government filed a two-count superseding information which charged Murchison with possession with

intent to distribute 47.2 grams of cocaine hydrochloride in violation

of 21 U.S.C. §§ 841(a)(1), (b)(1)(c), and possession with intent to distribute 15.6 grams of cocaine base "crack" in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(b). He pled guilty to both of those counts pursuant to a plea agreement. The district court sentenced Murchison to

188 months' imprisonment and five years' supervised release.

On appeal, Murchison challenges the district court's calculation of

his base offense level under the Federal Sentencing Guidelines. Either

the defendant or the Government may appeal a sentence on the

ground that it was the result of an incorrect application of the guidelines. 18 U.S.C.A. § 3742 (West 1985 & Supp. 1996). However, we

give due deference to the sentencing court's application of the guidelines to the facts. § 3742(e). When the issue is primarily a factual

determination, we apply the clearly erroneous standard, and when the

issue is more purely legal, we conduct de novo review. United States

v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989).

Murchison first relies on the common scheme rule, accountability

of co-conspirators, and approximation cases to support his assertion

that the district court erred in calculating the drug amount attributable

to him. However, the district court determined the quantity of drugs

attributed to him according to the superseding information, which

specified the amount of drugs found hidden in various compartments

of Murchison's car during a traffic stop. The district court did not

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determine the quantities based on a common scheme, a co-conspiracy,

or approximation. Thus, this argument is misplaced.

Furthermore, Murchison pled guilty to the charges in the superseding information and a valid guilty plea constitutes admission of the

material elements of the crime. McCarthy v. United States, 394 U.S.

459, 466 (1969). In addition, a failure to object to an error in the sentence calculation at the sentencing hearing results in forfeiture of the

right to appeal that issue. United States v. Grubb, 11 F.3d 426, 440

(4th Cir. 1993). Even so, plain error affecting a substantial right may

be reviewed for the first time on appeal if the error seriously affects

fairness, integrity, or the public reputation of the judicial proceedings.

United States v. Olano, 507 U.S. 725, 732 (1993); United States v.

Fant, 974 F.2d 559, 565 (4th Cir. 1992). The amount attributed to

Murchison was not plainly erroneous. Thus, his failure to object and

his guilty plea waived any right to appeal the issue.

Murchison next argues that the pre-sentence report overstates his

criminal history with respect to his career offender status. The report

reveals that over a ten-month period, Murchison was arrested four

separate times and charged with nine offenses. All of the offenses

were disposed of by the court on the same day, and each case received

a separate sentence that ran concurrently. However, the cases were

not consolidated. Murchison argues that the state court considered

these incidents as one offense, and that it is therefore fundamentally

unfair for the district court to consider the incidents separately for

sentencing purposes.

Prior sentences imposed in related cases are treated as one case in

assigning criminal history points. USSG § 4A1.2(a)(2). However,

related cases are those in which there is no intervening arrest and the

offenses (1) occurred on a single occasion, (2) were part of a single

common scheme or plan, or (3) were consolidated for trial or sentencing. USSG § 4A1.2, comment. (n.3). Murchison was arrested on four

separate occasions, thereby making the four arrests separate offenses.

Further, the district court had the discretion to depart downward from

the guidelines had it believed the offense level overstated the criminal

history. United States v. Adkins, 937 F.2d 947, 952 (4th Cir. 1991);

United States v. Summers, 893 F.2d 63, 67 (4th Cir. 1990). The district court heard argument at the sentencing hearing on the issue but

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decided not to depart downward. We do not review a district court's

refusal to depart, United States v. Bayerle, 898 F.2d 28, 30-31 (4th

Cir.), cert. denied, 498 U.S. 819 (1990), unless the decision is based

on a mistaken perception of lack of authority. United States v. Hall,

977 F.2d 861, 863 (4th Cir. 1992). The district judge indicated he

knew he had the authority to depart but chose not to do so in this circumstance. Thus, this argument is also meritless.

Because we find no error in the district court's application of the

Federal Sentencing Guidelines, the judgment of the district court, sentencing Murchison to 188 months' imprisonment and five years'

supervised release, is affirmed. 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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