UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 94-5928

JAMES KWADWO KWARTENG, a/k/a

Nana Kwarteng,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Herbert N. Maletz, Senior Judge, sitting by designation.

(CR-94-99-MJG)

Submitted: March 21, 1996

Decided: April 2, 1996

Before NIEMEYER and MICHAEL, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

James K. Bredar, Federal Public Defender, Kathryn R. Frey, Assistant

Federal Public Defender, Baltimore, Maryland, for Appellant.

Lynne A. Battaglia, United States Attorney, Robert R. Harding,

Assistant United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

James Kwadwo Kwarteng pled guilty to one count of conspiracy

to import more than one kilogram of heroin, 21 U.S.C.A. § 963 (West

Supp. 1995), and was sentenced to a term of 97 months imprisonment

after the government recommended a two-level departure for substantial assistance. United States Sentencing Commission, Guidelines

Manual, § 5K1.1 (Nov. 1994). Kwarteng's attorney has moved to

withdraw and has filed a brief in accordance with Anders v.

California, 386 U.S. 738 (1967), raising one issue but stating that, in

her view, there are no meritorious grounds for appeal. Kwarteng has

filed a pro se supplemental brief. After a thorough review of the briefs

and the record, we deny the motion to withdraw at this time, and we

affirm.

Kwarteng's plea agreement provided that the government might, in

its sole discretion, move for a substantial assistance departure under

Fed. R. Crim. P. 35 after sentencing if Kwarteng rendered substantial

assistance in the prosecution of others. Kwarteng subsequently testified in the trial of co-defendant Akyaw Owusu, but refused to testify

against a number of Ghanaians charged with money laundering. At

Kwarteng's sentencing, the government recommended a two-level

downward departure under USSG § 5K1.1 and informed the court

that a four-level departure would have been recommended had Kwarteng agreed to assist in the prosecution of the money launderers.

Defense counsel asked the district court to depart by four levels

because of the quality of Kwarteng's assistance in the prosecution of

Owusu. The district court departed by two levels, finding that Kwarteng's assistance had been more limited than it could have been.

In the Anders brief, Kwarteng's attorney suggests that the district

court erred in departing by only two levels. This issue is without merit

because a defendant may not appeal the extent of a downward depar-

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ture except when the departure decision resulted in a sentence

imposed in violation of law or resulted from an incorrect application

of the guidelines. United States v. Hill, 70 F.3d 321, 324 (4th Cir.

1995).

In his pro se supplemental brief, Kwarteng contends that the government promised to recommend a four-level departure based on his

testimony against Owusu but reneged on its promise after he decided

not to testify in the other trial. He terms himself a victim of vindictive

prosecution. He argues that his attorney was ineffective in failing to

make known to the district court the government's prior promise to

recommend a four-level departure, and in failing to request a departure based on his age, his health, his family circumstances, and his

community involvement. We find no merit in the first claim. The plea

agreement did not obligate the government to move for a downward

departure and that fact was made clear to Kwarteng when he entered

his guilty plea. Therefore, Kwarteng is not entitled to relief because

the government recommended a lesser departure than was contemplated before he terminated his assistance. We note that the reasons

for the government's change of heart were explained at sentencing.

A claim of ineffective assistance should be raised in a motion

under 28 U.S.C. § 2255 (1988), not on direct appeal, unless the record

conclusively establishes that counsel did not provide effective assistance. United States v. Matzkin, 14 F.3d 1014, 1017 (4th Cir. 1994).

Because the record does not conclusively demonstrate ineffective

assistance, we do not address the issue.

In accordance with Anders, we have examined the entire record in

this case and find no meritorious issues for appeal. Defense counsel's

current motion to withdraw is denied. This court requires that counsel

inform her 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 again 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 affirm Kwarteng's conviction and sentence. We dispense with

oral argument because the facts and legal contentions are adequately

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presented in the record and briefs, and oral argument would not aid

the decisional process.

AFFIRMED

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