UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

No. 96-4904

GREGORY STEVEN LATHROP, a/k/a

Greg,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Rebecca B. Smith, District Judge.

(CR-96-84)

Submitted: July 15, 1997

Decided: October 17, 1997

Before NIEMEYER and HAMILTON, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

Helen F. Fahey, United States Attorney, Fernando Groene, Assistant

United States Attorney, Norfolk, Virginia, for Appellant. James S.

Ellenson, Newport News, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

The United States appeals the 120-month sentence imposed on

Gregory Steven Lathrop following his conviction of conspiracy to

distribute methamphetamine, 18 U.S.C. § 846 (1994), and two counts

of possession of methamphetamine with intent to distribute, 21

U.S.C.A. § 841 (West 1981 & Supp. 1997). The government contends

that the district court abused its discretion in departing downward

based on a combination of two factors: Lathrop's age (42) and lack

of prior felony criminal convictions. Because we find that the district

court erred in departing on these grounds, we vacate the sentence and

remand for resentencing within the guideline range.

The district court must impose a sentence within the guideline

range unless it determines that individual facts present in the case take

the case outside the "heartland" of typical cases embodied in the conduct covered by the applicable guideline. Before departing, the sentencing court should determine whether the factor on which it is

considering a departure has been forbidden, encouraged, discouraged,

or unmentioned as a possible basis for departure by the Sentencing

Commission. See Koon v. United States, #6D 6D6D# U.S. ___, 64 U.S.L.W.

4512, 4516-17 (U.S. June 13, 1996) (No. 94-1664/8842); United

States v. Wilson, 114 F.3d 429, ___, 1997 WL 269332, at *4 (4th Cir.

May 22, 1997) (following Koon). Forbidden factors may never be

grounds for departure. If the factor being considered is a discouraged

factor, it may support a departure only if (1) the court finds that it is

present to an extraordinary degree which takes the case outside the

heartland of ordinary cases encompassed by the guideline, and (2) the

court determines that the factor is important enough that a departure

"should result." Id. Similarly, if a factor is encouraged but the applicable guideline takes it into account, then it may justify a departure only

if it "`is present to an exceptional degree or in some other way makes

the case different from the ordinary case where the factor is present.'"

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See United States v. Brock, 108 F.3d 31, 34-35 (4th Cir. 1997) (quoting Koon). In an extraordinary case, a combination of factors which

are "not ordinarily relevant" to a departure decision may cause the

case to "differ significantly from the `heartland' of cases in a way that

is important to the statutory purposes of sentencing, even though none

of the characteristics or circumstances individually distinguishes the

case." USSG § 5K2.0, comment.* A departure would be possible in

such a case, but such a case would be "extremely rare." Id.

A defendant's age is a discouraged basis for departure. Under

USSG § 5H1.1, p.s., a defendant's age may be a ground for departure

if the defendant is "elderly and infirm." Lathrop is neither and, as the

district court acknowledged, his age alone was not a ground for departure.

The Sentencing Commission has forbidden a downward departure

premised on a defendant's lack of countable criminal history points.

USSG § 4A1.3, p.s. ("The lower limit of the range for Criminal History Category I is set for a first offender with the lowest risk of recidivism. Therefore, a departure below the lower limit of the guideline

range for Criminal History Category I on the basis of the adequacy

of criminal history cannot be appropriate."); see also Koon, 64

U.S.L.W. at 4520-21.

A departure may be based on a combination of factors in a rare

case only when all the factors are "not ordinarily relevant" to a departure decision. Because one of the factors on which the district court

relied in this case was a forbidden factor which can never justify a

departure, we find that the court erred in departing below the guideline range.

Accordingly, we vacate the sentence and remand for resentencing

within the guideline range. 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.

VACATED AND REMANDED

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*United States Sentencing Commission, Guidelines Manual (Nov.

1995).

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