United States v. Kevin R. Plummer

902 F.2d 1567, 1990 U.S. App. LEXIS 6843, 1990 WL 64797

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 1, 1990
• Docket: 89-5483
• Status: Unpublished

Opinion

902 F.2d 1567
Unpublished Disposition

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
UNITED STATES of America, Plaintiff-Appellant,
v.
Kevin R. PLUMMER, Defendant-Appellee.

No. 89-5483.

Fourth Circuit.

Submitted Jan. 25, 1990.
Decided May 1, 1990.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Herbert F. Murray, Senior District Judge. (CR-89-188-HM)

Breckinridge L. Willcox, United States Attorney, William K. Meyer, Assistant United States Attorney, Baltimore, Md., for appellant.

Fred Warren Bennett, Federal Public Defender, Baltimore, Md., for appellee.

D.Md.

VACATED AND REMANDED WITH INSTRUCTIONS.

Before K.K. HALL, MURNAGHAN and CHAPMAN, Circuit Judges.

PER CURIAM:

The government appeals from the sentence imposed on Kevin Plummer after he pleaded guilty to bank robbery, in violation of 18 U.S.C. Sec. 2113(a). The sole issue raised on appeal is whether the sentencing court could depart downward from the sentence prescribed by the Sentencing Guidelines on the basis of successful drug rehabilitation efforts made by Plummer after his arrest. This precise issue was recently addressed by this court in United States v. Van Dyke, 895 F.2d 984 (4th Cir.1990). In Van Dyke, we held that post-arrest rehabilitative efforts are not " 'an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission' " and, therefore, such efforts may not serve as an independent basis for a downward departure. Id. at 987 (quoting 18 U.S.C. Sec. 3553(b)). Van Dyke is dispositive of the issue presented in the instant appeal. Consequently, we vacate the sentence and remand with instructions to the district court to impose a sentence within the appropriate sentencing guidelines range. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court.