United States v. Davis ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4221
PATRICK ORLANDO DAVIS,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-99-215)
Submitted: August 29, 2000
Decided: September 12, 2000
Before WILKINS and MICHAEL, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
_________________________________________________________________
Dismissed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Louis C. Allen, III, Federal Public Defender, William S. Trivette,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Walter C. Holton, Jr., United States Attorney, Arnold L.
Husser, Assistant United States Attorney, Greensboro, North Caro-
lina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Patrick Orlando Davis appeals his conviction entered on his guilty
plea to reentry of the United States by a deported alien felon in viola-
tion of 8 U.S.C. § 1326 (1994). Davis noted a timely appeal and his
counsel filed a brief pursuant to Anders v. California, 386 U.S. 738,
744 (1967), in which he represents that there are no arguable issues
of merit in this appeal. Nonetheless, in his brief, counsel addressed
the possibility that the district court erred in declining to depart down-
ward based on the allegedly misleading language of the letter Davis
received from the INS on his deportation. Cf. United States v. Aquino-
Chacon, 109 F.3d 936, 939 (4th Cir. 1997). The time for filing a sup-
plemental brief has passed and Davis has not responded, despite being
informed of his right to do so. Finding that we lack the authority to
review Davis's claim of error, and discovering no reversible error in
our own review of the record before us, we dismiss this appeal.
Davis suggests that the district court erred in refusing to depart
from the Sentencing Guidelines range in recognition of the allegedly
misleading language contained in the letter from the INS warning him
of the consequences of his reentry of the United States. A district
court's decision not to depart from the sentencing guidelines is not
subject to appellate review unless the refusal to depart is based on the
mistaken belief that the court lacked the authority to depart. See
United States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir. 1990). The
record establishes that the court fully considered Davis's contentions
regarding the letter but nonetheless found that any confusion engen-
dered by the letter did not warrant a departure from the Guidelines
range. See Aquino-Chacon, 109 F.3d at 939. The court's decision is
not subject to appellate review. As a result, the appeal must be dis-
missed.
As required by Anders, we have independently reviewed the entire
record and all pertinent documents. We have considered all possible
2
issues presented by this record and conclude that there are no non-
frivolous grounds for this appeal. Pursuant to the plan adopted by the
Fourth Circuit Judicial Council in implementation of the Criminal
Justice Act of 1964, 18 U.S.C. § 3006A (1994), this court requires
that counsel inform his client, in writing, of his right to petition the
Supreme Court for further review. If requested by the client to do so,
counsel should prepare a timely petition for writ of certiorari, unless
counsel believes that such a petition would be frivolous. In that case,
counsel may move in this court for leave to withdraw from represen-
tation. Counsel's motion must state that a copy thereof was served on
the client.
Davis's appeal is dismissed. Counsel's pending motion to with-
draw is denied. 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.
DISMISSED
3