United States v. Gibson , 17 F. App'x 73 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4777
JEFFREY LANE GIBSON,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Anderson.
G. Ross Anderson, Jr., District Judge.
(CR-189)
Submitted: May 31, 2001
Decided: June 20, 2001
Before WILKINS and MICHAEL, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
COUNSEL
David W. Plowden, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Arthur Bradley Parham, OFFICE OF
THE UNITED STATES ATTORNEY, Florence, South Carolina, for
Appellee.
2 UNITED STATES v. GIBSON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Jeffrey Lane Gibson appeals his conviction entered on his guilty
plea to possession of a firearm by a felon in violation of 18 U.S.C.
§ 922(g) (1994). Gibson 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 downward in recog-
nition of Gibson’s family circumstance. Cf. United States v. Brand,
907 F.2d 31, 33 (4th Cir. 1990). The time for filing a supplemental
brief has passed and Gibson has not responded, despite being
informed of his right to do so. Finding that we lack the authority to
review Gibson’s claim of error, and discovering no reversible error in
our own review of the record before us, we dismiss this appeal.
Gibson suggests that the district court’s refusal to depart from the
Sentencing Guidelines range based on his family’s reliance on his
income was reversible error. 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 Gibson’s contentions regarding his family’s situation
but nonetheless found that any hardship engendered by his imprison-
ment did not warrant a departure from the guidelines range. See
Brand, 907 F.2d at 33. The court’s decision is not subject to appellate
review. As a result, the appeal must be dismissed.
As required by Anders, we have independently reviewed the entire
record and all pertinent documents. We have considered all possible
issues presented by this record and conclude that there are no non-
frivolous grounds for this appeal. Pursuant to the plan adopted by the
UNITED STATES v. GIBSON 3
Forth Circuit Judicial Council in implementation of the Criminal Jus-
tice 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.
Gibson’s appeal is dismissed. 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