UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 98-4676 THEODORE MCFARLIN, Defendant-Appellant.

Appeal from the United States District Court for the District of South Carolina, at Florence.

Cameron McGowan Currie, District Judge. (CR-97-736) Submitted: March 31, 1999 Decided: May 6, 1999 Before WIDENER, ERVIN, and WILKINS, Circuit Judges. _________________________________________________________________ Affirmed by unpublished per curiam opinion. _________________________________________________________________ COUNSEL I.S. Leevy Johnson, Columbia, South Carolina, for Appellant. J. Rene Josey, United States Attorney, Scarlett Wilson, Assistant United States Attorney, Columbia, South Carolina, for Appellee. _________________________________________________________________ Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). _________________________________________________________________ OPINION PER CURIAM: Theodore McFarlin appeals from a 292-month sentence imposed following his convictions for conspiracy to possess with intent to dis- tribute and to distribute cocaine in violation of 21 U.S.C.A. § 846 (West Supp. 1998), and for two counts of making false declarations in violation of 18 U.S.C.A. § 1623 (West Supp. 1998). McFarlin chal- lenges the district court's refusal to grant a downward departure based upon his poor health and the court's relevant conduct determination of the amount of drugs attributable to McFarlin. We find no error and affirm.

We note that the district court's refusal on the merits to depart below the applicable guideline range is not reviewable on appeal. See United States v. Jones, 18 F.3d 1145, 1148 (4th Cir. 1994). After reviewing the excerpts of the trial and sentencing transcripts, we find that the district court's attribution to McFarlin of the drug transactions by McFarlin's co-conspirator was not clearly erroneous. See United States v. Williams, 986 F.2d 86, 90 (4th Cir. 1993). We further note that even assuming the challenged transactions were not included in the amount of drugs attributed to McFarlin, his base offense level would remain the same and any such error would be harmless. See United States v. Sampson, 140 F.3d 585, 593 (4th Cir. 1998).

Accordingly, we affirm McFarlin's sentence. 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