UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4452

JOHN EISENHARDT,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Frederic N. Smalkin, District Judge.

(CR-95-468-S)

Submitted: April 8, 1997

Decided: July 30, 1997

Before WIDENER, HALL, and NIEMEYER, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

M. Brooke Murdock, FERGUSON, SCHETELICH, HEFFERNAN &

MURDOCK, P.A., Baltimore, Maryland, for Appellant. Lynne A.

Battaglia, United States Attorney, Joseph L. Evans, Assistant United

States Attorney, Baltimore, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Eisenhardt appeals his sentence imposed for violating 18 U.S.C.

§ 371 (1994). He pleaded guilty to conspiring to distribute a sexually

explicit videotape involving a minor. Eisenhardt paid three minor,

male prostitutes to come to his apartment and engage in sexual

encounters with an adult male. Eisenhardt videotaped the encounters

and spliced the scenes together along with religious music and scenes

placed throughout. Eisenhardt took the tape to the home of Basil

Ketchum, left the tape with Ketchum, and it was discovered pursuant

to a search of a storage locker under Ketchum's control. Eisenhardt

appeals the district court's denial of three motions for a downward

departure from the sentencing guidelines. We affirm.

Eisenhardt argues that the district court erred in not exercising its

discretion but rather deciding as a matter of law that his requests for

downward departures should be denied. He contends that in light of

Koon v. United States, 64 U.S.L.W. 4512 (U.S. June 13, 1996) (No.

94-1664, 94-8842), his sentence should be vacated and the case

remanded for resentencing. We reject Eisenhardt's interpretation of

the district court's action. The district court did rule as a matter of law

that it could not depart but in making that determination the court

considered the facts of Eisenhardt's case and the governing law in

each of the three instances. We therefore proceed to determine

whether the decisions may be affirmed and find that they may.

Following Koon, factors considered as grounds for departures are

placed into certain categories which determine the test for finding

whether departure is appropriate. See United States v. Brock, ___ F.3d

___, slip op. at 5 (4th Cir. Feb. 28, 1997) (No. 96-4405). The first factor advanced is that the sentencing guideline itself overrepresents the

seriousness of Eisenhardt's conduct. This is an"unmentioned" factor

and thus departure is appropriate if, taking into consideration the

structure and theory of both relevant individual guidelines and the

guidelines taken as a whole, the circumstances presented are sufficient to remove the case from the heartland of the applicable guideline. The district court found that the facts of this case were not

sufficiently atypical to take it out of the heartland of cases falling

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under U.S. Sentencing Guidelines Manual § 2G2.1 (1995). We find

no abuse of discretion.

Eisenhardt's next proffered factor is family circumstances. This is

a "discouraged" factor. See USSG § 5H1.6. Departure is permitted on

this factor only if the factor is present to an exceptional degree or in

some other way makes the case different from the ordinary cases

where the factor is present. Brock, slip op. at 6. We find no abuse of

discretion in the district court's determination that no departure was

permitted based upon circuit precedent and Eisenhardt's evidence

which showed that his mother may lose the family home and have to

be placed in a "home" if he is incarcerated for a lengthy period. See

United States v. Rybicki, 96 F.3d 754, 758-59 (4th Cir. 1996); United

States v. Brand, 907 F.2d 31, 33 (4th Cir. 1990).

Eisenhardt's final proffered factor is his supposed reduced role in

the offense. He did not attempt to gain a reduction for his reduced role

under USSG § 3B1. This factor is an "encouraged" factor but it is

taken into account in the guidelines under § 3B. See USSG § 5H1.7.

The same criteria for departure applies as for his family circumstances

factor. We again find no abuse of discretion in the district court's

finding that his role, as the actual maker of the videotape, was not a

relatively blameless one and that the departure was not warranted.

We therefore affirm the district court's refusal to depart based upon

these three bases. 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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