United States of America, Plaintiff-appellee, v. Samuel Glen White, Defendant-appellant, 16 F.3d 413 (4th Cir. 1994)

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US Court of Appeals for the Fourth Circuit - 16 F.3d 413 (4th Cir. 1994) Dec. 16, 1993. Jan. 13, 1994

Appeal from the United States District Court for the Western District of Virginia, at Abingdon. Samuel G. Wilson, District Judge. (CR-92-49)

Louis Dene, Dene & Dene, Abigdon, Virginia, for Appellant.

E. Montgomery Tucker, U.S. Atty., Peter Haggerty, Julie M. Campbell, Assist. U.S. Atty., U.S. Atty's Office, Abingdon, Virginia, for Appellee.

W.D. Va.

Affirmed.

Before HALL and NIEMEYER, Circuit Judges, and SPROUSE, Senior Circuit Judge.


PER CURIAM

Samuel Glen White appeals from the district court sentence order. White pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C.A. Secs. 922(g) (1), 924(e) (West 1976 & Supp.1993). His attorney filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), finding no non-frivolous ground for appeal but noting one arguable issue. Although notified by counsel and this Court of his right to do so, White failed to file a supplemental brief. We affirm.

White moved below for departure from the 180-month guidelines sentence based on diminished capacity. In addition the Government moved for a departure to 120 months for substantial assistance. The district court, without stating specific reasons, reduced the sentence to 100 months. White subsequently moved for a further reduction on diminished capacity, which was denied.

The district court departed downward an additional twenty months on White's motion, after having reduced the sentence to the 120 months requested by the Government. However, the extent of the departure, is not appealable. Cf. United States v. Ghannam, 899 F.2d 327, 329 (4th Cir. 1990) (only the Government may appeal a downward departure). Thus, the issue noted by counsel with regard to the sentence is without merit.

In accordance with the requirement of Anders, we have examined the entire record in this case and find no other potentially meritorious issues for appeal. We deny White's counsel's motion to withdraw, and, 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 (1988)), 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. 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.

AFFIRMED.