UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 96-4055

MARIO JONES, a/k/a Mario Dufreen

Jones,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Virginia, at Charlottesville.

James H. Michael, Jr., Senior District Judge.

(CR-95-31)

Submitted: August 22, 1996

Decided: September 12, 1996

Before RUSSELL, HALL, and WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Margaret M. Cain, Charlottesville, Virginia, for Appellant. Robert P.

Crouch, Jr., United States Attorney, Ray B. Fitzgerald, Jr., Assistant

United States Attorney, Charlottesville, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Mario Jones pled guilty to one count of distributing crack cocaine,

21 U.S.C.A. § 841 (West 1981 & Supp. 1996). Pursuant to an oral

plea agreement, a related charge was dismissed. Jones was sentenced

to a term of 115 months imprisonment. He contends on appeal that

the district court erred in failing to address mitigating factors which

might justify a downward departure: his voluntary cooperation with

authorities, his age, and his health. United States Sentencing Commission, Guidelines Manual §§ 5K1.1, p.s., 5H1.1, p.s., 5H1.4, p.s. (Nov.

1995). He seeks resentencing or vacation of his guilty plea. We

affirm.

The probation officer recommended an upward departure under

USSG § 4A1.3, p.s., because Jones had 23 criminal history points. At

the sentencing hearing, Jones's attorney asked him to testify about the

information he voluntarily provided to investigators at the time of his

guilty plea. Jones stressed that he had given the information solely out

of concern for his brother, who was also involved in drug dealing.

Jones also described in detail his medical problems: sleep apnea and

asthma which requires him to sleep with the assistance of an oxygen

machine which must be monitored by another person while he sleeps.

Because of Jones's cooperation and his medical condition, defense

counsel requested a sentence at the low end of the guideline range.*

The district court explicitly considered Jones's cooperation in

deciding not to depart upwardly as recommended by the probation

officer. The court also recommended that Jones be placed in a facility

equipped to give him the medical treatment he needed. While Jones

may have hoped for a downward departure, he did not request a

downward departure. He has thus forfeited review of the issue unless

plain error occurred. Fed. R. Crim. P. 52(b); United States v. Olano,

507 U.S. 725 (1993).

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*Jones's age (26) was not discussed.

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A district court's decision not to depart is normally not reviewable

on appeal, United States v. Bayerle, 898 F.2d 28, 31 (4th Cir.), cert.

denied, 498 U.S. 819 (1990). If the court's decision not to depart is

based on a finding that it lacks legal authority to depart, that legal

decision is reviewed de novo. United States v. Hall, 977 F.2d 861,

863 (4th Cir. 1992). Because Jones never requested a downward

departure, the court did not determine whether it had authority to

depart. We find that plain error did not occur.

Jones claims in his appeal brief that the government promised him

a substantial assistance motion in return for his guilty plea and failed

to fulfill its promise. However, he made no mention of such a promise

in the district court and he did not move to withdraw his plea. Consequently, we find no basis for vacating the guilty plea.

The conviction and the sentence are therefore affirmed. 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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