UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4010

ROBERT B. CHARLES,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of West Virginia, at Bluefield.

David A. Faber, District Judge.

(CR-97-67)

Submitted: July 28, 1998

Decided: August 25, 1998

Before MURNAGHAN and HAMILTON, Circuit Judges, and

HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

James B. McIntyre, MCINTYRE & COLLIAS, Charleston, West Virginia, for Appellant. Rebecca A. Betts, United States Attorney, Susan

M. Arnold, Assistant United States Attorney, Charleston, 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Unpublished opinions are not binding precedent in this circuit.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:

Robert B. Charles pled guilty to one count of mail fraud, 18 U.S.C.

§ 1341 (1994), and one count of money laundering, 18 U.S.C.A.

§ 1956(a)(1)(A)(i) (West Supp. 1998). The district court imposed a

sentence of thirty-three months imprisonment, refusing Charles'

request for a downward departure. On appeal, Charles contends that

the district court mistakenly believed that it lacked authority to depart.

We affirm.

Charles falsely reported to his insurance company the theft of a

Mercedes-Benz he had purchased for $18,500. He also falsely

reported to the insurance company that he had made repairs to the

Mercedes amounting to more than $13,000. At the time of the

reported theft, Charles owed $17,686 to One Valley Bank, which held

title to the vehicle. The insurance company paid that amount to the

bank to extinguish the lien and, after receiving the title from the bank,

paid Charles over $14,000. It was later discovered that Charles still

had the Mercedes.

The money laundering count raised Charles' guideline sentence

calculation and made him ineligible for probation. Charles requested

a downward departure on the grounds that the money laundering

guideline produced disproportionately high sentences, that inconsistent charging practices could produce unwarranted disparity, that the

money laundering statute was being applied more broadly than anticipated by the Sentencing Commission, and that the Sentencing Commission had recommended amendments to the money laundering

guidelines which were not adopted by Congress. At sentencing,

defense counsel argued that Charles' conduct in committing the mail

fraud was indistinguishable from the conduct which violated the

money laundering statute and, thus, a sentence within the guideline

range which would have applied had he been convicted only of mail

fraud was appropriate. The district court decided that Charles' conduct was not outside the heartland of money laundering cases because

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Charles had committed additional criminal conduct after the initial

fraud when he used the fraud proceeds to pay off the lien on the Mercedes, and that a departure would leave that conduct unpunished.

On appeal, Charles argues that the district court erred in deciding

that his case was within the heartland of money laundering cases.

Generally, a district court's discretionary refusal to depart is not

reviewable on appeal. See United States v. Bayerle, 898 F.2d 28, 31

(4th Cir. 1990). A narrow exception permits review if the district

court bases its decision not to depart on a mistaken view that it lacks

legal authority to depart. Id.; see also United States v. Hall, 977 F.2d

861, 863 (4th Cir. 1992). Here, the court properly concluded that a

departure was not warranted on the ground urged by Charles--that his

fraud and money laundering conduct was so closely related that he

was only technically guilty of money laundering. Section 1956 criminalizes a broad range of financial transactions with funds garnered

through a multitude of unspecified unlawful activities, including

fraud. See 18 U.S.C.A. §§ 1956(c)(7) (listing federal crimes triggering

money laundering provisions). The Eleventh Circuit has recently

explained that:

Congress intended to criminalize a broad array of money

laundering activity, and included within this broad array is

[transferring fraud profits between bank accounts]. Simply

stated, [fraud based] money laundering . . . is of the type

considered by Congress and the Sentencing Commission.

United States v. Adams, 74 F.3d 1093, 1102 (11th Cir. 1996).

The district court did not err in finding that it was without authority

to depart so as to nullify Charles' money laundering conviction. See

id. at 1103.

We therefore affirm the sentence imposed. 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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