UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4435

CARL EDWARD METHENEY,

Defendant-Appellant. 

Appeal from the United States District Court

for the Southern District of West Virginia, at Charleston.

John T. Copenhaver, Jr., District Judge.

(CR-99-201)

Submitted: February 28, 2001

Decided: April 4, 2001

Before LUTTIG, MOTZ, and TRAXLER, Circuit Judges.

Affirmed in part and dismissed in part by unpublished per curiam

opinion. 

COUNSEL

Thomas W. Smith, Charleston, West Virginia, for Appellant. Rebecca

A. Betts, United States Attorney, Steven I. Loew, 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Unpublished opinions are not binding precedent in this circuit.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: 

Carl Metheney pled guilty to possession of a firearm after a misdemeanor conviction of domestic violence, 18 U.S.C.A. § 922(g)(9)

(West 2000) (Count One), and possession of a firearm with an obliterated serial number, 18 U.S.C.A. § 922(k) (West 2000). He appeals the

sentence of fifty-seven months imprisonment he received, alleging

that the district court erred in calculating his base offense level under

U.S. Sentencing Guidelines Manual § 5K2.1(a)(4)(B) (1998), in failing to depart downward based on the totality of the circumstances,

and in failing to recognize its authority to depart based on extraordinary family circumstances, USSG § 5H1.6, p.s., and his actual innocence of the prior misdemeanor domestic violence conviction. We

affirm in part, and dismiss in part. 

In 1997, Carl Metheney pled no contest to a West Virginia charge

of domestic battery and was fined $100. The conviction was based on

his wife’s allegation that he had burned her arm with a cigarette.

However, during a hearing on the revocation of Metheney’s bond during the prosecution of the instant offense, she testified that he had not

burned her intentionally. In September 1999, Metheney was charged

with a number of federal firearms offenses. He pled guilty to possession of firearms after being convicted of a misdemeanor crime of

domestic violence, and possession of a firearm with an obliterated

serial number. 

The district court determined that Metheney’s base offense level

was 20 under USSG § 2K2.1(a)(4)(B) because he was a "prohibited

person,"1 and the offense involved both a firearm described in 26

U.S.C. § 5845(a) (1994) (a short-barreled shotgun), and a firearm

described in 18 U.S.C.A. § 921(a)(30) (West 2000) (a TEC-DC9).

1Application Note 6 to § 2K2.1 defines a "prohibited person," as used

in subsection (a)(4)(B), as including a defendant who has been convicted

in any court of a misdemeanor crime of domestic violence as defined in

18 U.S.C.A. § 921(a)(33) (West 2000). 

2 UNITED STATES v. METHENEY
Possession of either firearm by a prohibited person triggers the

enhanced base offense level.2 USSG § 2K2.1(a)(4)(B). 

Metheney objected that the TEC-DC9 should not be considered a

basis for the enhanced base offense level because guideline Amendment 522, which added the firearms listed in § 921(a)(30) to USSG

§ 2K2.1(a)(4)(B), was in conflict with 18 U.S.C.A. § 922(v)(2) (West

2000). Title 18, § 922(v)(1), provides that it is unlawful to possess a

semiautomatic assault weapon. Subsection (v)(2) provides that, "Paragraph (1) shall not apply to the possession or transfer of any semiautomatic assault weapon otherwise lawfully possessed under Federal

law on the date of the enactment of this subsection." Subsection (v)

was added by Pub. L. 103-322, which went into effect on September

13, 1994. At Metheney’s sentencing hearing, the government stipulated that Metheney acquired his semiautomatic assault weapon

before his misdemeanor domestic violence conviction from someone

who lawfully owned the gun before the effective date of § 922(v). 

Metheney also requested a downward departure on the following

grounds: (1) that he was actually innocent of the domestic violence

offense; (2) that, due to its lack of a quorum in 1998 and 1999, the

Sentencing Commission had been unable to determine whether the

sentencing range for his offense was appropriate; (3) his extraordinary

family circumstances; and (4) the totality of the circumstances. 

The district court concluded that Metheney’s argument was without

merit, and that base offense level 20 applied under § 2K2.1(a)(4)

because Metheney had possessed a semiautomatic assault weapon

while he was a prohibited person. The court also declined to depart

on any of the grounds put forward by Metheney. 

On appeal, Metheney renews his argument that the Sentencing

Commission exceeded its authority in creating an enhancement for

possession of a semiautomatic assault weapon by a prohibited person

without including an exception for a weapon that was lawfully owned

on the date § 922(v) went into effect, similar to the exception in

§ 922(v)(2). He relies on United States v. LaBonte, 520 U.S. 751, 757

2As a prohibited person, Metheney’s base offense level would have

been 14 without the contested enhancement. USSG § 2K2.1(a)(6). 

UNITED STATES v. METHENEY 3
(1997), for the principle that, when the sentencing guidelines conflict

with a federal statute, the statute controls. LaBonte held that Amendment 506, which amended the commentary to USSG § 4B1.1 to preclude consideration of statutory enhancements in calculating the

"offense statutory maximum," conflicted with the directive in 28

U.S.C.A. § 994(h) (West 1993 & Supp. 2000), that the Sentencing

Commission assure that certain repeat offenders receive a sentence at

or near the maximum term authorized. Metheney also cites United

States v. Palmer, 183 F.3d 1014, 1017 (9th Cir. 1999), which held

that it was error to use a prior drug conviction for which the defendant’s civil rights had been restored to justify an enhanced base

offense level under § 2K2.1(a)(4)(A), even though the commentary to

§ 5K2.1 and § 4A1.2 together require consideration of such a conviction. See USSG § 5K2.1, comment. (n.5); USSG § 4A1.2, comment.

(n.10). 

However, Metheney has not identified a conflict as clear as those

at issue in LaBonte and Palmer. Section 922(v) does not address possession of a semiautomatic assault weapon by a prohibited person.

The exception in § 922(v)(2) is thus of benefit only to a person who

has not lost his right to possess any firearm because of one of the

events listed in § 922(g). Viewed in this light, there is no conflict

between § 922(v) and § 2K2.1(a)(4)(B). Therefore, the district court

did not err in computing a base offense level of 20. 

A sentencing court’s refusal to depart downward is not reviewable

on appeal when the district court recognizes its authority to depart but

decides that the facts and circumstances do not warrant departure.

United States v. Brock, 108 F.3d 31, 33 (4th Cir. 1997). The record

discloses that the district court considered Metheney’s request for a

departure based on the totality of the circumstances in his case and

decided against a departure. The sentencing court’s decision not to

depart is thus not reviewable, and we dismiss this portion of the

appeal. United States v. Bayerle, 898 F.2d 28, 32 (4th Cir. 1990). 

An appellate court may review the district court’s refusal to depart

downward when the court mistakenly believed that it lacked authority

to depart. United States v. Edwards, 188 F.3d 230, 238 (4th Cir.

1999), cert. denied, 528 U.S. 1130 (2000). Metheney contends that

the district court did not seriously consider a departure based on the

4 UNITED STATES v. METHENEY
negative effects of his incarceration on his wife and daughter because

the court believed that a departure on this ground would never be

affirmed by the Fourth Circuit. This claim is also unsupported by the

record. The district court made detailed findings explaining that the

hardships Metheney’s incarceration would cause his family were not

sufficiently extraordinary to warrant a departure. There is no indication that the district court believed that it lacked authority to depart

on this ground in an appropriate case. Therefore, this claim fails. 

We find that the district court correctly decided that it lacked the

authority to depart based on Metheney’s alleged actual innocence of

the domestic violence offense. The commentary to USSG § 4A1.2

specifically provides that the defendant does not have a right to collaterally attack a prior conviction at the sentencing hearing. USSG

§ 4A1.2, comment. (n.6). While any factor that is not forbidden as a

ground for departure may support a departure under Koon v. United

States, 518 U.S. 81, 106 (1996), Metheney’s actual innocence was not

an established fact. Mrs. Metheney had given conflicting statements

about the incident that led to her husband’s conviction for abuse. The

district court would have had to make a factual finding that Metheney

had not actually abused his wife before it could consider a departure

on that ground. Therefore, whether deliberate or not, Metheney’s

request for a departure for actual innocence was a collateral attack on

his prior conviction, and the district court correctly determined that

it lacked authority to depart on that ground. 

We therefore affirm the sentence. We dismiss that portion of the

appeal that contests the district court’s decision not to depart based on

the totality of the circumstances. 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

UNITED STATES v. METHENEY 5