United States v. Bobadilla ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 94-5791
LUIS RAMON BOBADILLA, a/k/a J. D.
Moreno,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Falcon B. Hawkins, Chief District Judge.
(CR-94-121)
Submitted: February 7, 1996
Decided: February 29, 1996
Before MURNAGHAN and WILLIAMS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Parks N. Small, Federal Public Defender, Columbia, South Carolina,
for Appellant. J. Preston Strom, Jr., United States Attorney, A. Peter
Shahid, Jr., Assistant United States Attorney, Charleston, South Caro-
lina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Luis Ramon Bobadilla pled guilty to a single-count information,
which charged him with conspiracy to possess with the intent to dis-
tribute cocaine and heroin, in violation of 21 U.S.C. § 846 (1988).
The district court sentenced Bobadilla to serve sixty-three months
imprisonment to be followed by five years supervised release and
deportation. He appeals his conviction and sentence. Bobadilla's
attorney has filed a brief in accordance with Anders v. California, 386
U.S. 738 (1967), raising two issues but indicating that, in his view,
there are no meritorious issues for appeal. Bobadilla was informed of
his right to file a pro se supplemental brief; he has failed to file any-
thing on his behalf.
Bobadilla's counsel raises the questions of whether the district
court complied with requirements outlined in Rule 11 of the Federal
Rules of Criminal Procedure when taking Bobadilla's plea and
whether the district court sentenced him in accordance with the Sen-
tencing Guidelines. Finding no reversible error, we affirm Bobadilla's
conviction and sentence.
Following a de novo review of the entire record, we conclude that
the district court complied with all the mandates of Rule 11 in accept-
ing Bobadilla's guilty plea. Further, during sentencing, the district
court accepted the Government's motion for a downward departure
due to Bobadilla's substantial pre-sentencing assistance and sentenced
him just above the statutory minimum. While a defendant may appeal
an upward departure under 18 U.S.C. § 3742(a)(3)(A) (1988), the
statute does not authorize a defendant to challenge the extent of a
departure in his favor. See United States v. Hill, 70 F.3d 321, 323 (4th
Cir. 1995) (dissatisfaction with extent of downward departure does
not provide a basis for appeal). Further, when a district court departs
downward, an appellate court lacks the jurisdiction to review the dis-
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trict court's refusal to make further departure on other grounds.
United States v. Patterson, 38 F.3d 139, 146 (4th Cir. 1994), cert.
denied, 63 U.S.L.W. 3817 (U.S. 1995).
In accordance with the requirements of Anders , we have examined
the entire record in this case and find no other meritorious issues for
appeal. This court requires that counsel inform his client, in writing,
of his right to petition the Supreme Court of the United States for fur-
ther 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.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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