United States v. Moore , 23 F. App'x 184 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4444
GERALD ALONZO MOORE,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4445
GERALD ALONZO MOORE,
Defendant-Appellant.

Appeals from the United States District Court
for the Middle District of North Carolina, at Durham.
Frank W. Bullock, Jr., District Judge.
(CR-00-394-1, CR-00-395-1)
Submitted: November 27, 2001
Decided: January 15, 2002
Before WILKINS, MICHAEL, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
COUNSEL
Louis C. Allen, III, Federal Public Defender, William C. Ingram, Jr.,
First Assistant Federal Public Defender, Greensboro, North Carolina,
2 UNITED STATES v. MOORE
for Appellant. Benjamin H. White, Jr., United States Attorney, Robert
M. Hamilton, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Gerald Alonzo Moore pled guilty to two separate one-count indict-
ments charging him with two different bank robberies. Moore’s attor-
ney has filed a brief in accordance with Anders v. California, 386
U.S. 738 (1967), in which he represents that there are no arguable
issues of merit in this appeal. Nevertheless, in his brief, counsel
addresses the possibility that the district court should have granted
Moore’s motion for a downward departure. Although advised of his
right to do so, Moore did not file a pro se supplemental brief. Because
we find that the district court’s decision is not reviewable, we dismiss
the appeal.
A district court’s refusal to grant a downward departure is not
reviewable on appeal unless the court erroneously believed that it
lacked the authority to depart. United States v. Bayerle, 898 F.2d 28,
30-31 (4th Cir. 1990). The record here clearly shows the district court
recognized that it had the authority to grant Moore’s motion, but
declined to do so under the circumstances.
We have examined the entire record in this case in accordance with
the requirements of Anders and find no meritorious issues for appeal.
The 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 a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. Coun-
sel’s motion must state that a copy thereof was served on the client.
UNITED STATES v. MOORE 3
We therefore dismiss Moore’s appeal. We also deny counsel’s cur-
rent motion to withdraw. 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