United States of America, Plaintiff-appellee, v. Jerry Dunlap, Defendant-appellant, 50 F.3d 8 (4th Cir. 1995)

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U.S. Court of Appeals for the Fourth Circuit - 50 F.3d 8 (4th Cir. 1995)

Submitted: February 14, 1995. Decided: March 23, 1995

Leslie Hunter Miller, Carnegle & Miller, Charlotte, NC, for Appellant. Harry Thomas Church, Assistant United States Attorney, Charlotte, NC, for Appellee.

Before WILKINS and LUTTIG, Circuit Judges, and BUTZNER, Senior Circuit Judge.


Jerry Dunlap pled guilty to involvement in a conspiracy to possess cocaine with intent to distribute. See 21 U.S.C. §§ 841(a) (1) & 846 (1988). Dunlap filed a timely appeal and his counsel filed a motion to withdraw as counsel on appeal along with a formal brief pursuant to Anders v. California, 386 U.S. 738 (1967). The brief discussed only the application of the guidelines and the district court's decision to depart downward from the sentencing guidelines on the Government's motion. The time for filing a supplemental brief has passed and Dunlap has not responded.

This Court has "join [ed] eight other courts of appeal in holding that we lack jurisdiction over appeals from what the defendant perceives as an insufficient downward departure." United States v. Mitchell, No. 92-5072 (4th Cir. Apr. 30, 1993) (unpublished) (citing published opinions from the First, Second, Third, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits). Appellate review of this issue is unwarranted.

Accordingly, we affirm Dunlap's sentence. As required by Anders, we have independently reviewed the entire record and all pertinent documents. We have considered all possible issues presented by this record and conclude that there are no nonfrivolous grounds for this appeal. 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. Counsel's motion must state that a copy thereof was served on the client. Counsel's motion to withdraw is denied.

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.