United States v. R. Gallegos-Olivo

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4049
RAFAEL GALLEGOS-OLIVO,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge.
(CR-98-144-BO)
Submitted: August 31, 1999
Decided: September 24, 1999
Before NIEMEYER, MICHAEL, and MOTZ,
Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
William Arthur Webb, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Felice McConnell-Corpening, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Rafael Gallegos-Olivo pled guilty to possession of a firearm by a
convicted felon, 18 U.S.C. § 922(g) (1994), and illegal re-entry into
the United States after deportation, in violation of 8 U.S.C. § 1326(a)
(1994). Gallegos-Olivo appeals from the district court's judgment
sentencing him to seventy-two months imprisonment. His attorney
has filed a brief in accordance with Anders v. California, 386 U.S.
738 (1967), addressing whether the district court erred in denying
Gallegos-Olivo's request for downward departure. Gallegos-Olivo
has filed a pro se supplemental brief in which he argues that Criminal
History IV overrepresented his criminal history and, therefore, the
district court should have departed downward to Category III.
Prior to sentencing, Gallegos-Olivo contended that the pre-sentence
report's criminal history category over-represented his prior criminal
history and that departure was warranted under § 4A1.3 of the sen-
tencing guidelines. See U. S. Sentencing Guidelines Manual § 4A1.3,
p.s. (1998). Gallegos-Olivo's criminal history was determined to be
Category IV based on seven points assessed under the guidelines. Of
these, two points were assessed for a 1988 conviction for carrying a
concealed weapon (a felony); the remaining points were assessed for
(1) driving while impaired; (2) driving while impaired and driving
while license revoked; and (3) sale of marijuana. Two additional
points were assessed because Gallegos-Olivo was on unsupervised
probation when he committed the underlying offenses. Gallegos-
Olivo argued that, except for the felony conviction, the remaining
convictions were for relatively minor offenses and, therefore, Cate-
gory IV overrepresented his actual criminal record. The court
declined to grant Gallegos-Olivo's motion for downward departure
and sentenced him to seventy-two months imprisonment, the low end
of the applicable guideline range.
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A district court's decision not to depart from the sentencing guide-
lines 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 understood its
authority to depart but refused to do so. Its decision is not subject to
appellate review.
In accordance with Anders, we have examined the entire record in
this case and find no reversible error. We therefore affirm Gallegos-
Olivo's convictions and sentence. 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 a petition would be
frivolous, then counsel may move in this court for leave to withdraw
from representation. See 4th Cir. Local Rule 46(d). Counsel's motion
must state that a copy thereof was served on the client. See id. We dis-
pense 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
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