UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4740

BETTY TUCKER,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of West Virginia, at Clarksburg.

Irene M. Keeley, District Judge.

(CR-95-11)

Submitted: October 31, 1997

Decided: November 24, 1997

Before HALL and NIEMEYER, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed in part and dismissed in part by unpublished per curiam

opinion.

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COUNSEL

Robert C. Stone, Jr., KISER, STONE & CORDELL, Martinsburg,

West Virginia, for Appellant. William D. Wilmoth, United States

Attorney, Thomas O. Mucklow, Assistant United States Attorney,

Wheeling, West Virginia, 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Unpublished opinions are not binding precedent in this circuit.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:

Betty Tucker pled guilty to distributing .33 grams of crack cocaine,

21 U.S.C.A. § 841 (West 1981 & Supp. 1997), and was sentenced to

a term of ninety-seven months imprisonment. She appeals her sentence on the ground that the district court abused its discretion in

refusing to depart downward for extraordinary acceptance of responsibility under U.S. SENTENCING GUIDELINES MANUAL § 5K2.0, p.s.

(1995). She also contends that the district court failed to understand

its authority to depart and clearly erred in finding that she had more

than a minor role in the offense under USSG § 3B1.2(b). We affirm

in part and dismiss in part.

For the greater part of 1994, Tucker sold crack at her husband's

pawnshop. Tucker sold 91.14 grams of crack to informants making

controlled purchases. A juvenile was also involved in sales of crack

at the pawnshop with Tucker's knowledge. In January 1995, Tucker

was arrested on a Maryland drug charge. While she was in custody,

Tucker participated in drug and alcohol treatment programs. In July

1995, she was sentenced in Maryland to two years probation with the

special condition that she complete a substance abuse and aftercare

program in West Virginia. Tucker complied with all the conditions of

her probation, lived with her mother and daughters, and found work

taking care of a stroke victim.

At sentencing, Tucker requested a downward departure for extraordinary acceptance of responsibility. She presented testimony from her

Maryland probation officer and others concerning her rehabilitation

and good conduct since she was placed on probation. Defense counsel

argued that extraordinary acceptance of responsibility was a permissible ground for departure under Koon v. United States, 116 S. Ct. 2035

(1996), and United States v. Hairston, 96 F.3d 102 (4th Cir. 1996).

In Hairston, this court held that a factor which is discouraged as a

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basis for departure, because it has already been taken into account

under the guidelines, may still provide a basis for departure when the

factor is present to an extraordinary degree. See Hairston, 96 F.3d at

107-08. The district court agreed with Tucker that a departure was

possible on the ground urged. However, because the change in Tucker's outlook and conduct occurred only after she was arrested on state

charges and was ordered by the state court to complete substance

abuse programs, the district court found that she had not shown

extraordinary acceptance of responsibility, and declined to depart.

When the district court exercises its discretion by refusing to depart,

its decision is not reviewable on appeal. See United States v. Bayerle,

898 F.2d 28, 31 (4th Cir. 1990).

In her reply brief, Tucker argues that the court believed it lacked

authority to depart for extraordinary acceptance of responsibility. This

is an issue which we review de novo. See United States v. Hall, 977

F.2d 861, 863 (4th Cir. 1992). Our examination of the record discloses that the district court in fact understood its authority to depart

if a departure was warranted, and determined in its discretion that the

circumstances did not warrant a departure.

Tucker also contends that the district court clearly erred in determining her role in the offense by failing to compare her culpability

with that of her co-conspirators. We disagree. The district court did

not err in concluding that Tucker's role as a seller in a drug distribution conspiracy was more than a minor role. See United States v.

Brooks, 957 F.2d 1138, 1149 (4th Cir. 1992).

We therefore affirm the sentence and dismiss Tucker's challenge

to the district court's decision not to depart. 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 IN PART, DISMISSED IN PART

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