UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4310
ORESTES M. VERGE, II,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Patrick Michael Duffy, District Judge.
(CR-97-580)
Submitted: November 3, 1998
Decided: December 1, 1998
Before MURNAGHAN and LUTTIG, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Albert Peter Shahid, Jr., Charleston, South Carolina, for Appellant. J.
Rene Josey, United States Attorney, Scott N. Schools, Assistant
United States Attorney, Charleston, South Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Orestes M. Verge, II, was convicted pursuant to his guilty pleas of
one count of armed bank robbery and one count of using a firearm
during a crime of violence. On appeal, he alleges that the district court
erroneously enhanced his base offense level by two levels for reckless
endangerment during flight pursuant to USSG § 3C1.21 and that he
was entitled to a downward departure because his criminal history
score over-represented his criminal history. Finding no error, we
affirm.
Verge and a co-defendant robbed a bank at gunpoint. Verge admit-
ted that he drove the getaway vehicle. He also admitted that he drove
at speeds exceeding eighty-five miles per hour through residential
areas and on the interstate and ran a red light in an effort to elude
police. In addition, Verge stated that he saw what he believed to be
a police car make a u-turn and pursue him shortly after the robbery.
The Government presented evidence showing that a local police offi-
cer, who was responding to the robbery, observed a car matching the
description of the getaway vehicle.2 As he drove past the vehicle, the
occupants ducked their heads so he could not identify them. As the
officer made a u-turn to follow the vehicle, it accelerated away at a
high rate of speed. The officer stated that his vehicle, which had its
lights and siren on, reached speeds in excess of ninety-five miles per
hour during the chase and that he was unable to keep up with the sus-
pects' vehicle. The officer also observed the vehicle run a red light,
with other vehicles present, weave in and out of traffic, and drive on
both shoulders. The officer stated that he lost the vehicle at the same
exit Verge admitted he took during his getaway. Law enforcement
officers eventually apprehended Verge's co-defendant, who identified
Verge as his accomplice.
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1 U.S. Sentencing Guidelines Manual (1997).
2 The officer was unavailable to testify at trial. The Government pres-
ented the officer's testimony through a FBI agent who interviewed the
officer prior to trial. We also note that the vehicle spotted by the officer
matched the description of the vehicle Verge admitted he drove follow-
ing the robbery.
2
Verge alleges that the district court improperly enhanced his sen-
tence under USSG § 3C1.2 for reckless endangerment during flight.3
We review the court's determination that Verge's actions while being
pursued by the officer constituted reckless conduct for clear error and
find none. See United States v. Chandler, 12 F.3d 1427, 1433 (7th
Cir. 1994). The evidence presented showed that Verge drove errati-
cally and at a high rate of speed, at times through a residential area,
while trying to elude the officer. His willful, reckless conduct during
flight clearly could have caused injury to others. We reject Verge's
assertion that the Government failed to prove that he was the driver
of the vehicle the officer pursued. The record supports the district
court's conclusion that the officer's description of the events so
closely matched Verge's admissions following his apprehension that
the two vehicles were the same.
We find meritless Verge's assertion that the district court erred by
failing to grant him a downward departure based on his belief that his
criminal history score significantly over-represented the likelihood
that he would commit crimes in the future. The district court heard
arguments on this issue and denied Verge's motion on the merits.
Since the district court recognized its authority to depart on this basis,
its refusal to do so is not reviewable on appeal. See United States v.
Bayerle, 898 F.2d 28, 30-31 (4th Cir. 1990).
We therefore affirm Verge's convictions and sentence. 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.
AFFIRMED
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3 This section provides for a two-level increase in a defendant's base
offense level if he "recklessly created a substantial risk of death or seri-
ous bodily injury to another person in the course of fleeing from a law
enforcement officer."
3