UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4493

TOBIN KINDER,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4533

SAMANTHA GILPIN, a/k/a Sam,

Defendant-Appellant.

Appeals from the United States District Court

for the Northern District of West Virginia, at Wheeling.

Frederick P. Stamp, Jr., Chief District Judge.

(CR-97-11)

Submitted: February 24, 1998

Decided: December 31, 1998

Before MURNAGHAN, NIEMEYER, and MICHAEL,

Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

John J. Pizzuti, CAMILLETTI, SACCO & PIZZUTI, Wheeling, West

Virginia, for Appellant Kinder; Robin M. Crum, Moundsville, West

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

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

Martinsburg, West Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Tobin Kinder pleaded guilty to distribution of crack cocaine in violation of 21 U.S.C. § 841(a)(1) (1994). Kinder was sentenced to

eighty months imprisonment and three years supervised release.

Kinder contends that the district court erred in failing to downwardly

depart from the applicable guideline range because it believed that it

lacked the authority to grant a departure. Samantha Gilpin pleaded

guilty to distribution of crack cocaine within 1000 feet of a protected

location in violation of 21 U.S.C. §§ 841(a)(1), 860 (1994). Gilpin

was sentenced to thirty-seven months imprisonment and five years

supervised release. Gilpin contends that the district court erred in

awarding a two-level enhancement under U.S. Sentencing Guidelines

Manual § 2D1.2(a)(1) (1995). Finding no error, we affirm.

I

Prior to sentencing, Kinder moved for a downward departure under

U.S. Sentencing Guidelines Manual § 5H1.4 (1995), asserting that his

severe medical impairments warranted a departure below the applicable guideline range. He asserted that he suffered from alcohol and

drug dependencies, hepatitis, and cirrhosis of the liver. The district

court denied the motion, finding that Kinder's drug and alcohol

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dependence and medical condition were not extraordinary conditions

warranting a departure. The district court specifically noted that

USSG § 5H1.4 provided that alcohol and drug dependence is not a

basis for departing below the applicable guideline range. Kinder

timely noted an appeal.

On appeal, Kinder contends that the district court erroneously

determined that it did not have the authority to depart downward

based on Kinder's alcohol and drug dependency and medical condition. He asserts that the district court's statement at sentencing that

"even if I had the authority--even though I might have the authority

to grant departure" demonstrates that the district court believed it

lacked authority to depart.

A decision not to depart is normally not appealable. See United

States v. Bayerle, 898 F.2d 28, 31 (4th Cir. 1990). However, an

appeal may be entertained if the district court's decision was based on

an erroneous belief that it lacked the legal authority to depart. See

United States v. Hall, 977 F.2d 861, 863 (4th Cir. 1992).

The sentencing transcript reveals that the district court heard argument on whether Kinder's dependencies and medical condition constituted an extraordinary physical impairment. The district court

specifically found that, under USSG § 5H1.4, Kinder's dependencies

did not warrant a departure. Further, the district court distinguished

United States v. Greenwood, 928 F.2d 645 (4th Cir. 1991), the authority on which Kinder relied, and found that Kinder's medical condition

did not constitute an extraordinary physical impairment. We find that

the district court considered Kinder's physical condition as a basis for

a possible departure but found that the facts of this particular case did

not warrant a departure on that basis. Therefore, Kinder is precluded

from appealing the district court's refusal to downwardly depart based

on his physical condition. See Bayerle, 898 F.2d at 31.

II

In the written plea agreement and at the rearraignment hearing, Gilpin reserved the right to argue at sentencing that the Marshall County

Head Start Program ("Program") was not a protected location under

21 U.S.C. § 860 because it was not a school. The district court over-

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ruled Gilpin's objection, finding that the Program was a school. The

district court further found that the Program resembles and follows

many of the principles that one would apply to an elementary school

or public kindergarten; therefore, the benefit of the drug-free zone

created by § 860 and afforded to the schools enumerated in the statute

should apply to this location as well. Gilpin timely noted an appeal.

On appeal, Gilpin contends that the district court erred in awarding

a two-level enhancement under USSG § 2D1.2(a)(1), based on its

finding that the offense occurred within 1000 feet of a protected location, the Program. Gilpin concedes that she distributed crack cocaine

within 1000 feet of the Program and that under § 860, public and private elementary, vocational, and secondary schools are protected

locations. Gilpin, however, asserts that the Program is not a school,

but rather, it is an extension of the local welfare department.

We review factual issues regarding application of the guidelines

under a clearly erroneous standard. See United States v. Daughtrey,

874 F.2d 213, 217 (4th Cir. 1989). We review legal issues involving

application of the guidelines de novo. See id. To the extent that the

issue before the court is more factual than legal, the standard of

review approaches that of review for clear error.

We hold that the district court did not clearly err in finding that the

Program was a school. Although the Program has some purposes

other than education, it resembles and follows many of the principles

that one would apply to an elementary or public kindergarten. The

Program operates on a 128-day calendar year, from September to

May. The children enrolled in the Program are between the ages of

three and five, and they attend the Program five hours a day, four

days a week. The children are involved in developmental activities

that are designed to improve their thinking ability and cognitive

development. The Program employs a teacher and an assistant

teacher. Thus, we reject this claim. See Daughtrey, 874 F.2d at 217.

III

We affirm Kinder's and Gilpin's sentences. We dispense with oral

argument because the facts and legal contentions are adequately pre-

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sented in the materials before the court and argument would not aid

the decisional process.

AFFIRMED

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