United States of America, Plaintiff-appellee, v. Robert H. Latta, Defendant-appellant, 918 F.2d 174 (4th Cir. 1990)

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U.S. Court of Appeals for the Fourth Circuit - 918 F.2d 174 (4th Cir. 1990) Submitted Oct. 29, 1990. Decided Nov. 14, 1990

Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Charles H. Haden, II, Chief District Judge. (CR-89-222-TSC)

Edward H. Weis, Assistant Federal Public Defender, Charleston, W.V., for appellant.

Michael W. Carey, United States Attorney, J. Kirk Brandfass, Assistant United States Attorney, Charleston, W.Va., for appellee.

S.D.W. Va.


Before WIDENER, PHILLIPS and WILKINSON, Circuit Judges.


Robert H. Latta pled guilty to distribution of marijuana within one thousand feet of a private college (21 U.S.C. § 845(a)) in November 1987 and appeals the sentence imposed under the Sentencing Guidelines. We affirm.

At his sentencing hearing, Latta's attorney argued that a departure to probation was warranted because there was little evidence of other drug sales, there was a two-year delay in prosecuting Latta, and he had changed his lifestyle in the interim. The district court found that there was evidence that Latta was regularly involved in drug sales, at least during the period when the offense occurred, and that a departure was not justified.

Counsel for Latta has filed a brief with this Court pursuant to Anders v. California, 386 U.S. 738 (1967), in which he raises one issue. While conceding that this Court has previously decided that a failure to depart is not appealable, United States v. Bayerle, 898 F.2d 28 (4th Cir.), cert. denied, 59 U.S.L.W. 3244 (U.S. Oct. 1, 1990) (No. 89-7759), Latta's counsel urges us to reconsider our decision in Bayerle. This we decline to do.

Latta has been informed of his right to file a supplemental brief, but has failed to exercise his right in this regard. As required by Anders, we have independently reviewed the entire record and all pertinent documents. We conclude that there are no nonfrivolous grounds for appeal and affirm the judgment of conviction.

Pursuant to the plan adopted by the Fourth Circuit Judicial Council in Implementation of the Criminal Justice Act of 1964 (18 U.S.C. § 3006A), this Court requires that counsel inform his client, in writing, of his right to petition the Supreme Court for further review. If requested by his client to do so, counsel should prepare a timely petition for a writ of certiorari. Counsel's request to withdraw from further representation is therefore denied.

We dispense with oral argument because the facts and legal contentions are adequately presented in the record and briefs, and oral argument would not aid the decisional process.