UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4705
ADOLFO LEMUS-MORA,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
James A. Beaty, Jr., District Judge.
(CR-00-128)
Submitted: April 27, 2001
Decided: May 7, 2001
Before LUTTIG and MOTZ, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
COUNSEL
Louis C. Allen, III, Federal Public Defender, Eric D. Placke, Assistant
Federal Public Defender, Greensboro, North Carolina, for Appellant.
Walter C. Holton, Jr., United States Attorney, Arnold L. Husser,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.
2 UNITED STATES v. LEMUS-MORA
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Adolfo Lemus-Mora challenges his sentence following his convic-
tion for reentry of a deported alien, in violation of 8 U.S.C. § 1326
(1994). Lemus-Mora’s counsel has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), challenging the district
court’s failure to depart downward on the basis of Lemus-Mora’s cul-
tural assimilation in the United States, but stating that in his opinion
there are no meritorious issues for appeal. Lemus-Mora was informed
of his right to file a pro se supplemental brief but did not do so.
When a district court exercises its discretion at sentencing and
refuses to depart downward, its decision is not subject to review on
appeal. United States v. Bayerle, 898 F.2d 28, 31 (4th Cir. 1990).
However, a refusal is reviewable if the court refuses to depart based
on a perception that it lacks legal authority to depart. United States
v. Hall, 977 F.2d 861, 863 (4th Cir. 1992). Because the district court
clearly knew that it had the authority to depart, the refusal is not
reviewable. Hall, 977 F.2d at 863; Bayerle, 898 F.2d at 31.
We have reviewed the entire record in accordance with the require-
ments of Anders and find no error below. We therefore dismiss the
appeal. This court requires that counsel inform his client, in writing,
of his right to petition the Supreme Court of the United States for fur-
ther 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. Coun-
sel’s motion must state that a copy thereof was served on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
DISMISSED