UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 97-4490

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

RONALD GENE SWANN,

Defendant - Appellant.

Appeal from the United States District Court for the Middle

District of North Carolina, at Durham. William L. Osteen, Sr.,

District Judge. (CR-96-172)

Submitted: August 31, 1998 Decided: October 7, 1998

Before NIEMEYER, HAMILTON, and MICHAEL, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Louis C. Allen, III, Federal Public Defender, Gregory Davis,

Assistant Federal Public Defender, Greensboro, North Carolina, for

Appellant. Walter C. Holton, Jr., United States Attorney, Robert

M. Hamilton, Assistant United States Attorney, Greensboro, North

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Ronald Gene Swann appeals his conviction and sentence for

possession with intent to distribute crack cocaine. See 21 U.S.C.

§ 841(a)(1) (1994). Swann 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 no arguable issues of

merit in this appeal. Nonetheless, at Swann’s request, counsel suggested that the district court erred in the extent of its downward

departure under the U.S. Sentencing Guidelines Manual § 5K1.1 (Nov.

1996). Despite being informed of his right to do so, Swann failed

to file a supplemental brief. Because we find the one issue raised

in this appeal to be without merit and can discern no other error

on this record, we affirm Swann’s conviction and sentence.

Despite the fact that Swann was subject to a statutory minimum

sentence of ten years, the Government filed a motion for a downward

departure based on Swann’s substantial assistance. See USSG

§ 5K1.1. On that motion, the district court imposed a term of

imprisonment of only 49 months, less than half of the statutory

minimum. See United States v. Patterson, 38 F.3d 139, 146 n.8 (4th

Cir. 1994). Despite this significant departure, Swann takes issue

with the extent of the downward departure, contending that it

should have been greater than 71 months he received. This court

lacks jurisdiction to consider the extent of the district court’s
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departure. See United States v. Hill, 70 F.3d 321, 324 (4th Cir.

1995). As a result, we must dismiss this appeal.

As required by Anders, we have independently reviewed the

entire record and all pertinent documents. We have considered all

possible issues presented by this record and concluded 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 his client to do so, counsel should prepare a timely

petition for writ of certiorari. Consequently, counsel’s motion to

withdraw is denied. 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.

DISMISSED