UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4766
CESAR BELTRAN-AVELLANEDA,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-02-82)
Submitted: March 12, 2003
Decided: April 22, 2003
Before WIDENER, MOTZ, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
COUNSEL
Louis C. Allen, III, Federal Public Defender, William S. Trivette,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Angela H.
Miller, Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.
2 UNITED STATES v. BELTRAN-AVELLANEDA
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Cesar Beltran-Avellaneda appeals his conviction and sentence for
illegally re-entering the United States after having been deported for
an aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2)
(2000). Counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), in which he states that there are no meritorious
issues for appeal. Although notified of his right to submit a pro se
supplemental brief, Beltran-Avellaneda has not done so.
Counsel presents for review the district court’s failure to depart
downward based on Beltran-Avellaneda’s cultural assimilation. This
court lacks jurisdiction to review the district court’s refusal to depart
downward unless that refusal is based on the court’s mistaken belief
that it lacked the power to depart. United States v. Bayerle, 898 F.2d
28, 30-31 (4th Cir. 1990). The record clearly indicates that the district
court knew it had the power to depart but simply refused to depart.
Therefore, this court lacks jurisdiction over Beltran-Avellaneda’s
appeal.
In accordance with Anders, we have reviewed the entire record in
this case and have found no meritorious issues for appeal. Because
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, we deny counsel’s motion to withdraw at this time. If the cli-
ent 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.
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