UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5657

JOYCELYN GWINNETTE TUCKER,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Greenville.

William B. Traxler, Jr., District Judge.

(CR-94-875)

Submitted: December 19, 1996

Decided: January 2, 1997

Before ERVIN and MOTZ, Circuit Judges, and BUTZNER,

Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

C. Timothy Sullivan, Greenville, South Carolina, for Appellant.

David Calhoun Stephens, Assistant United States Attorney, Greenville, South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Joycelyn Gwinnette Tucker appeals from her conviction and sentence for possession with intent to distribute cocaine base in violation

of 21 U.S.C.A. § 841(a)(1), (b)(2)(B) (West 1981 & Supp. 1996).

Tucker's attorney has filed a brief in accordance with Anders v.

California, 386 U.S. 738 (1967), addressing whether the district court

complied with the requirements of Fed. R. Crim. P. 11 in accepting

Tucker's guilty plea and whether the court erred in denying Tucker's

request for a departure below the guideline range. Counsel asserted

that there are no meritorious issues for appeal. Tucker was notified of

her right to file an additional brief, but has not done so.

Pursuant to an oral plea agreement, Tucker pled guilty to possession with intent to distribute cocaine base. The government stipulated

that Tucker would be held responsible for 25 grams of crack cocaine

and that Tucker should qualify for a reduction in offense level

because of her role as a minimal participant. USSG 3B1.2(a).* The

district court accepted this stipulation.

In accordance with the requirements of Anders , we have examined

the entire record in this case and find no meritorious issues for appeal.

The district court properly conducted the Rule 11 hearing and ensured

that Tucker knowingly and voluntarily entered her guilty plea. See

Boykin v. Alabama, 395 U.S. 238, 243-44 & nn.5-6 (1969). Further,

the government recited the factual basis for the plea, Tucker agreed

to the recitation of facts, and the court determined that the facts were

sufficient to prove all of the essential elements of possession with

intent to distribute crack cocaine. See Fed. R. Crim. P. 11(f); United

States v. DeFusco, 949 F.2d 114, 120 (4th Cir. 1991), cert. denied,

503 U.S. 997 (1992).

Counsel also raised an issue concerning the computation of Tucker's criminal history category and the district court's refusal to depart

below the sentencing guideline range. We find that Tucker's criminal

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*United States Sentencing Commission, Guidelines Manual (Nov.

1994). Tucker was sentenced on August 17, 1995.

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history was correctly determined. See USSG§§ 4A1.1, 4A1.2. Further, the district court's refusal to depart is not reviewable by this

court unless the district court "mistakenly believed that it lacked the

authority to depart." United States v. Bayerle, 898 F.2d 28, 30-31 (4th

Cir.), cert. denied, 498 U.S. 819 (1990). It is clear from the record

that the district court was aware of its authority to depart and declined

to do so. Therefore, we cannot review the court's refusal to depart

below the guideline range. Because Tucker's plea was knowing and

voluntary and accepted in accordance with Fed. R. Crim. P. 11 and

her sentence was the result of a proper application of the sentencing

guidelines, we affirm Tucker's conviction and sentence.

This court requires that counsel inform his client, in writing, of her

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.

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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