UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 98-4042

JACKIE CLAYTON COCKRANE, a/k/a

Jackie Clayton Cochrane,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of West Virginia, at Beckley.

David A. Faber, District Judge.

(CR-97-99)

Submitted: October 27, 1998

Decided: November 18, 1998

Before WILKINS, WILLIAMS, and MICHAEL, Circuit Judges.

_________________________________________________________________

Dismissed in part and affirmed in part by unpublished per curiam

opinion.

_________________________________________________________________

COUNSEL

Hunt L. Charach, Federal Public Defender, Brian J. Kornbrath, Assistant Federal Public Defender, Charleston, West Virginia, for Appellant. Rebecca A. Betts, United States Attorney, John L. File, Assistant

United States Attorney, Charleston, West Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Jackie Clayton Cockrane appeals from the twenty-seven-month

sentence imposed upon his guilty plea to escape from a federal institution, in violation of 18 U.S.C. § 751(a) (1994). Cockrane claims that

the district court erred in denying his request for a downward departure on the basis of duress under U.S.S.G. 5K2.12. 1 For the reasons

that follow, we dismiss in part and affirm in part.

On January 22, 1997, Cockrane walked away from the Federal

Prison Camp in Beckley, West Virginia, where he was serving a oneyear sentence for a prior conviction. According to Cockrane, he paid

an individual for the use of his car so that he could travel to Gastonia,

North Carolina, to attend to his common-law wife, Elizabeth Wery,

and was planning to return that evening. Wery was diagnosed with

throat cancer in May 1996. Although Cockrane's supervised release

was revoked on June 3, 1996, the court permitted him to delay reporting for his sentence until August 1996 to that he could be with Wery

while she underwent medical treatment. Wery, who had a history of

substance abuse, was prescribed Xanax during the course of her treatment. In November 1996, Cockrane learned that Wery had become

addicted to Xanax and that a friend of his was supplying it to her.

Cockrane requested a furlough so that he could go to Gastonia to

check on Wery. After learning that he was denied permission to go

home, he walked away from the prison camp.

At sentencing, Cockrane moved for a downward departure under

§ 5K2.12, asserting that he had escaped under the duress caused by

Wery's health. The district court concluded, after reviewing the

Guideline and United States v. McCrary, 887 F.2d 485 (4th Cir.

1989), that "the facts of the instant case did not fit within the para-

_________________________________________________________________

1 U.S. Sentencing Guidelines Manual (Nov. 1997).

 2
digm set forth in the Guidelines," and, therefore, that it "had no

authority to grant a downward departure pursuant to U.S.S.G.

§ 5K2.12."2

We review de novo the district court's interpretation of the legal

standard to be applied to a request for a downward departure. See

United States v. Rybicki, 96 F.3d 754, 758 (4th Cir. 1996). Unless this

court finds that the district court erroneously believed that it did not

have the discretion to depart downward, this court will not review the

district court's discretionary refusal to depart downward from the

applicable guideline range. See United States v. Brock, 108 F.3d 31,

33 (4th Cir. 1997); United States v. Bayerle, 898 F.2d 28, 30-31 (4th

Cir. 1990).

Although not entirely clear from the transcript of the sentencing

hearing and post-sentencing memorandum, we find that the district

court recognized its discretion to depart downward but, based on the

facts presented, chose not to do so. Judge Faber stated that the legal

standard for a downward departure under § 5K2.12 is whether the

duress involved a threat of physical injury to the person or property

of the defendant by a third party. Because this is the appropriate legal

standard, we do not have jurisdiction to reach the issue of whether the

district court properly found a downward departure unwarranted by

the facts of this case. See United States v. Brock, 108 F.3d at 33.

Next, Cockrane asserts that the district court should have conducted a separate analysis of "defense of others" as a ground for

departure. Because he did not raise this claim before the district court,

we review for plain error. See United States v. Olano, 507 U.S. 725,

732-35 (1993). This court may consider a claim not raised below if:

_________________________________________________________________

2 Section 5K2.12 provides, in relevant part:

If the defendant committed the offense because of serious coercion, blackmail or duress, under circumstances not amounting to

a complete defense, the court may decrease the sentence below

the applicable guideline range. . . . Ordinarily coercion will be

sufficiently serious to warrant departure only when it involves a

threat of physical injury, substantial damage to property or similar injury resulting from the unlawful action of a third party or

from a natural emergency.

 3
(1) there is an error; (2) the error is plain; (3) the error affects substantial rights; and (4) the court determines, after examining the particulars of the case, that the error "seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings." Olano, 507

U.S. at 732. We find that the district court's failure to sua sponte

depart on a ground other than that asserted by Cockrane was not

plainly erroneous.

Accordingly, we dismiss the appeal as to Cockrane's first claim

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 in the decisional process.

DISMISSED IN PART; AFFIRMED IN PART

 4