United States v. Tavares

ORDER

Frank Tavares appeals his judgment of conviction and sentence. The case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).

In 2001, Tavares pleaded guilty to conspiracy to distribute cocaine and marijuana in violation of 21 U.S.C. § 846. The district court sentenced Tavares to 65 months of imprisonment and five years of supervised release, and the court imposed a $100 special assessment. In this timely appeal, Tavares’s counsel has filed a motion to withdraw and a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Tavares has not responded to his counsel’s motion to withdraw.

Upon review, we affirm Tavares’s conviction and sentence. We specifically note that the extent of the district court’s downward departure is not reviewable on appeal. At sentencing, the court did depart downward, granting a government motion under USSG § 5K1.1 and reducing Tavares’s Total Offense Level by one point. While Tavares argued that the court should have departed downward further, he cannot challenge on appeal the extent of a downward departure. United States v. Nesbitt, 90 F.3d 164, 166 (6th Cir.1996).

Further, we have examined the record and conclude that no reversible error is apparent.

Accordingly, this court grants counsel’s motion to withdraw and affirms the district court’s judgment. Rule 34(j)(2)(C), Rules of the Sixth Circuit.