UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 95-5682

UNITED STATES OF AMERICA, Plaintiff - Appellee, versus CHARLES ARTHUR LOVELESS, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Chief District Judge. (CR-95-245-A)

Submitted: July 25, 1996 Decided: August 14, 1996

Before LUTTIG and MOTZ, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

Dismissed by unpublished per curiam opinion.

Roger G. Nord, Fairfax, Virginia, for Appellant. Helen F. Fahey, United States Attorney, Michael E. O'Hare, Special Assistant United States Attorney, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

PER CURIAM: Charles Arthur Loveless seeks to appeal his 18-month sentence for escape, 18 U.S.C.A. § 751(a) (West Supp. 1996). Loveless, who is HIV positive, contends that the district court erred in refusing him a departure below the guideline range under USSG § 5K2.11, p.s.* (avoidance of greater harm), or USSG § 5H1.4, p.s. (extrao- rdinary physical impairment). The district court's decision not to depart is not reviewable on appeal. United States v. Bayerle, 898 F.2d 28, 31 (4th Cir.), cert. denied, 498 U.S. 819 (1990).

We therefore dismiss the appeal. 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.

DISMISSED

* United States Sentencing Commission, Guidelines Manual (Nov.

1994).