UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. No. 99-4501

JOHN PEARSON, a/k/a JP, Defendant-Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Robert C. Chambers, District Judge. (CR-99-15)

Submitted: November 18, 1999

Decided: November 30, 1999

Before WILKINS, HAMILTON, and LUTTIG, Circuit Judges.

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Dismissed by unpublished per curiam opinion.

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COUNSEL

George A. Mills, III, Huntington, West Virginia, for Appellant. Rebecca A. Betts, United States Attorney, Ray M. Shepard, Assistant United States Attorney, Huntington, West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).

_________________________________________________________________ OPINION

PER CURIAM:

John Pearson pled guilty to aiding and abetting the distribution of cocaine base (crack), see

(a) (1994), and was sen- tenced as a career offender to a term of 151 months imprisonment. See U.S. Sentencing Guidelines Manual § 4B1.1 (1998). Pearson seeks to appeal the district court's decision not to depart below the career offender guideline range on the ground that it over-represented his criminal history. See USSG § 4A1.3, p.s. We dismiss.

A sentencing court's decision not to depart is not reviewable on appeal unless the decision is based on a perception that the court lacks authority to depart. See United States v. Hall,

(4th Cir. 1992); United States v. Bayerle,

(4th Cir. 1990). There is no doubt in this case that the court understood its authority to depart. The court simply decided that a departure was not war- ranted. To the extent that the court relied on our pre-Koon* decision in United States v. Brown,

(4th Cir. 1994) (hold- ing that a § 4A1.3 departure is not justified by the fact that a prior drug conviction involved a small amount of drugs), the court did not err. See United States v. Pearce, ___ F.3d ___,

, at *10 (4th Cir. Sept. 13, 1999) (reaffirming holding in Brown).

We therefore dismiss the appeal for lack of jurisdiction. We dis- pense 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 _________________________________________________________________ *Koon v. United States,

(1996).

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