UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 96-4107 SHAWN SHOWALTER, Defendant-Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. Frederick P. Stamp, Jr., Chief District Judge. (CR-95-22) Submitted: December 19, 1996 Decided: January 3, 1997 Before ERVIN and MOTZ, Circuit Judges, and BUTZNER, Senior Circuit Judge.

_________________________________________________________________ Dismissed by unpublished per curiam opinion.

_________________________________________________________________ COUNSEL William C. Gallagher, CASSIDY, MYERS, COGAN, VOEGELIN & TENNANT, L.C., Wheeling, West Virginia, for Appellant. William D. Wilmoth, United States Attorney, Sam G. Nazzaro, Assistant United States Attorney, Wheeling, West Virginia, for Appellee.

_________________________________________________________________Unpublished opinions are not binding pr ecedent in this circuit. See Local Rule 36(c).

_________________________________________________________________ OPINION PER CURIAM: Shawn Showalter appeals the 120-month sentence he r eceived after he pled guilty to conspiracy to possess with intent to distribute and to distribute crack cocaine in violation of 21 U.S.C.A. § 846 (West Supp. 1996). He contends that the district court erred by not granting his request for a departure from criminal history category II because it overstated his prior criminal history and the likelihood that hewould commit further crimes and because it prevented him from qualifying for the safety valve provision in 18 U.S.C.A.§ 3553(f) (West Supp. 1996), and U.S.S.G. § 5C1.2.* We dismiss the appeal. At sentencing, the district court recognized its authority to depart but chose not to based on the evidence presented at the hearing. The court concluded that Showalter's criminal history category was notoverstated because he committed the instant offense while on probation. The district court's discretionary decision not to depart is not appealable. United States v. Bayerle , 898 F.2d 28, 31 (4th Cir.), cert. denied , 498 U.S. 819 (1990). To the extent Showalter claims that his sentence is appealable because the court misapplied the safety valve provision, we rejecthis claim. To be eligible for a sentence under the safety valve provision, a defendant must not "have more than 1 criminal history point, as determined under the sentencing guidelines." 18 U.S.C.A. § 3553(f)(1); U.S.S.G. § 5C1.2(1). Application Note 1 to U.S.S.G. § 5C1.2 states that the phrase "as determined under the sentencing guidelines," means "as determined under U.S.S.G. § 4A1.1 (CriminalHistory Category)." Even if the court had departed from criminal history category II, Showalter would not have been eligible for the safety

_________________________________________________________________ *United States Sentencing Commission, Guidelines Manual (Nov. 1995).
2valve provision because he had three criminal history points under U.S.S.G. § 4A1.1. See United States v. Resto , 74 F.3d 22, 27-28 (2d Cir. 1996).Accordingly, we dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presentedin the materials before the court and argument would not aid the decisional process.
DISMISSED 3