UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 98-4818 VICTOR ELVOYD MCCAIN, Defendant-Appellant. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Samuel G. Wilson, Chief District Judge. (CR-98-45) Submitted: May 28, 1999 Decided: June 22, 1999 Before ERVIN, WILKINS, and MOTZ, Circuit Judges.

_________________________________________________________________ Affirmed by unpublished per curiam opinion.

_________________________________________________________________ COUNSEL Malcolm McL. Doubles, Salem, Virginia, for Appellant. Robert P. Crouch, Jr., United States Attorney, Sharon K. Burnham, Assistant United States Attorney, Roanoke, Virginia, for Appellee.

_________________________________________________________________ Unpublished opinions are not binding pr ecedent in this circuit. See Local Rule 36(c).

_________________________________________________________________OPINION PER CURIAM: Victor Elvoyd McCain appeals his conviction entered on his guilty plea to assault with a dangerous weapon with intent to do bodily harm in violation of 18 U.S.C. § 113(a)(3) (1994). McCain noted a timely appeal and his attorney filed a brief pursuant to Anders v. California , 386 U.S. 738, 744 (1967), in which he represents that there are noarguable issues of merit in this appeal. Nonetheless, in his brief, counsel addressed whether the district court erred by declining to allow McCain to withdraw his guilty plea and refusing to depart from the Sentencing Guidelines. The time for filing a supplemental brief has passed and McCain has not responded, despite being advised of his right to do so. Because we find c ounsel's assignments of error to be without merit, and can discern no other error in the record on appeal, we affirm McCain's conviction and sentence. McCain's counsel contends that the district court erred in refusing to allow McCain to withdraw his guilty plea. We review the districtcourt's denial of the motion to withdraw his plea for an abuse of discretion. See United States v. Wilson , 81 F.3d 1300, 1305 (4th Cir. 1996). In order to amount to an abuse of discretion, the district courtmust either fail or refuse to exercise its discretion or rely on an erroneous legal or factual premise in the exercise of its discretionary authority. See James v. Jacobson , 6 F.3d 233, 239 (4th Cir. 1993). In this case, there is no evidence of an abuse of discretion. The districtcourt considered McCain's motion in light of the proper legal standards, see United States v. Moore , 931 F.2d 245, 248 (4th Cir. 1991), and did not rely on any erroneous factual assumptions. Accordingly, we find no cause to disturb the district court's reasoned order denying the motion. McCain also contends that the presentence investigation report over represented his criminal history and the district court erred indeclining to grant a downward departure from the Sentencing Guidelines range. SeeU.S.S.G. § 4A1.3(c), p.s. (1997). A district court's decision not to depart from the Sentencing Guidelines is not subjectto appellate review unless the refusal to depart is based on the mistaken belief that it lacked the authority to depart. See United States
2v. Bayerle , 898 F.2d 28, 30-31 (4th Cir. 1990). There is no such error in this case. As required by Anders , we have independently reviewed the entire record and all pertinent documents. We have considered all possibleissues presented by this record and conclude that there are no nonfrivolous grounds for this appeal. 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 (1994), this court requires that counsel inform his client, in writing, of his right to petition the Supreme Court for further review. If requested by the client to do so,counsel should prepare a timely petition for writ of certiorari. Consequently, counsel's motion to withdraw is denied. If counsel believes that such a petition would be frivolous, counsel may move in thiscourt for leave to withdraw from representation at that time. Counsel's motion must state that a copy thereof was served on the client.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
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