United States v. Maganda-Chino , 53 F. App'x 236 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 02-4513
ANTONIO MAGANDA-CHINO, a/k/a
Jesus Olivar-Chino,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-02-11)
Submitted: November 14, 2002
Decided: December 16, 2002
Before WILKINS, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.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. Anna Mills Wagoner, United States Attorney, Arnold L.
Husser, Assistant United States Attorney, Greensboro, North Caro-
lina, for Appellee.
2 UNITED STATES v. MAGANDA-CHINO
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Antonio Maganda-Chino appeals his conviction and sentence for
reentry of a deported alien felon in violation of 8 U.S.C. §§ 1326(a),
(b)(2) (2000). Maganda-Chino’s attorney has filed a brief in accor-
dance with Anders v. California, 386 U.S. 738 (1967), raising one
issue but stating that, in his view, there are no meritorious grounds for
appeal. Although notified of his right to do so, Maganda-Chino has
not filed a pro se supplemental brief. Finding no reversible error, we
affirm.
Counsel raises the issue of whether the district court erred in failing
to depart downward and sentencing Maganda-Chino to thirty-six
months of imprisonment. Because a decision to depart from the sen-
tencing guidelines is a highly factual determination within the exclu-
sive province of the sentencing court, this court will only review such
a decision if it reflects a purely legal determination, such as the dis-
trict court’s misapprehension of its authority to depart. United States
v. Wilkinson, 137 F.3d 214, 230 (4th Cir. 1998); United States v.
Bayerle, 898 F.2d 28, 30-31 (4th Cir. 1990). Based on our review of
the record, we find the district court recognized its authority to depart
but declined to do so under the circumstances. Therefore, this claim
is not subject to appellate review.
Moreover, we have no authority to review the district court’s deci-
sion to sentence Maganda-Chino to thirty-six months of imprison-
ment. This sentence is within the guideline range and is below the
statutory maximum sentence of twenty years. See 8 U.S.C.
§ 1326(b)(2) (setting forth statutory maximum). Because Maganda-
Chino’s sentence does not exceed the maximum allowed by the
guidelines or statute, we will not review it on appeal. See United
States v. Porter, 909 F.2d 789, 794 (4th Cir. 1990) (finding challenge
to court’s exercise of discretion in setting a sentence within a properly
calculated guideline range not addressable on appeal).
UNITED STATES v. MAGANDA-CHINO 3
In accordance with Anders, we have reviewed the entire record and
have found no meritorious issues for appeal. We therefore affirm
Maganda-Chino’s conviction and sentence. We deny counsel’s
motion to withdraw at this time. This court requires that counsel
inform his client, in writing, of his right to petition the Supreme Court
of the United States for further review. If the client requests that a
petition be filed, but counsel believes that such petition would be friv-
olous, then counsel may move in this court for leave to withdraw
from representation. Counsel’s motion must state that a copy thereof
was served on the client. 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