UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4629
HENRY FRAZIER STEVENSON, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Abingdon.
Glen M. Williams, Senior District Judge.
(CR-97-43-A)
Submitted: March 31, 1999
Decided: May 24, 1999
Before HAMILTON and WILLIAMS, Circuit Judges, and
HALL, Senior Circuit Judge.
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Affirmed in part and dismissed in part by unpublished per curiam
opinion.
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COUNSEL
Dennis E. Jones, Angela D. Childress, DENNIS E. JONES & ASSO-
CIATES, P.C., Lebanon, Virginia, for Appellant. Robert P. Crouch,
Jr., United States Attorney, Rick A. Mountcastle, Assistant United
States Attorney, Ruth E. Plagenhoef, Assistant United States Attor-
ney, Roanoke, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Henry Frazier Stevenson, Jr., pled guilty to distributing approxi-
mately 1.74 grams of cocaine, in violation of 21 U.S.C. § 841(a)
(1994). Relying on two prior bank robbery convictions, the district
court sentenced Stevenson as a career offender to 151 months in
prison. Stevenson appeals, challenging the use of his prior bank rob-
bery convictions to classify him as a career offender and challenging
the district court's failure to make a downward departure. We affirm
in part and dismiss in part.
Contrary to Stevenson's claims, his conviction for robbing a bank
in Virginia constitutes a crime of violence under U.S. Sentencing
Guidelines Manual § 4B1.2 (1997). Stevenson's conviction was for
bank robbery (18 U.S.C.A. § 2113(a) (West 1984 & Supp. 1999)) and
using a firearm in the commission of a felony (18 U.S.C.A.
§ 924(c)(1) (West 1976 & Supp. 1999)). The Advisory Notes specifi-
cally state that robbery is considered a crime of violence for purposes
of § 4B1.2. See U.S.S.G. § 4B1.2 comment. (n.1). Even if it was
appropriate to look beyond the fact of Stevenson's prior conviction to
the circumstances of his case, see United States v. Kirksey, 138 F.3d
120, 124 (4th Cir.), cert. denied, ___ U.S. ___, 67 U.S.L.W. 3232
(U.S. Oct. 5, 1998) (No. 97-9400), under the facts as presented by
Stevenson himself, the bank robbery qualified as a crime of violence.
See United States v. Russell, 917 F.2d 512, 517 (11th Cir. 1990).
Stevenson claims that his prior bank robbery convictions occurred
too long before his current offense to be counted toward classifying
him as a career offender. In order to count as a prior felony conviction
for purposes of career offender status, the sentence for that conviction
must exceed one year and one month, and must have resulted in the
defendant being incarcerated for a period of time within the fifteen
years preceding the commencement of the instant offense. See
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U.S.S.G. §§ 4A1.2(e)(1); 4B1.2(c). Counting the date Stevenson com-
mitted his crime of conviction as the date of commencement, see
United States v. Kennedy, 32 F.3d 876, 890-91 (4th Cir. 1994), we
find that both of his previous bank robberies constitute prior felony
convictions for purposes of career offender status because he served
a portion of his prison term for those convictions within the fifteen
years preceding the commencement of his current offense.
Finally, Stevenson argues that the district court erred by failing to
make a downward departure from career offender status under
U.S.S.G. § 4A1.3, p.s. Absent circumstances not present here, a deci-
sion not to depart is not reviewable. See United States v. Hall, 977
F.2d 861, 863 (4th Cir. 1992); United States v. Bayerle, 898 F.2d 28,
31 (4th Cir. 1990).
For these reasons, we affirm Stevenson's conviction. We dismiss
the portion of the appeal challenging the district court's failure to
make a downward departure. 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 IN PART, DISMISSED IN PART
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