UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4955

ROBERT EARL BROWN, III,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Columbia.

Dennis W. Shedd, District Judge.

(CR-97-75-DWS)

Submitted: October 27, 1998

Decided: November 18, 1998

Before MICHAEL and MOTZ, Circuit Judges, and

HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

John H. Hare, Assistant Federal Public Defender, Columbia, South

Carolina, for Appellant. J. Rene Josey, United States Attorney,

Drenaye L. Houston, Assistant United States Attorney, Columbia,

South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Robert Earl Brown, III appeals his conviction and the sentence he

received after he pled guilty to six counts of bank robbery.1 The court

sentenced Brown to 157 months' imprisonment and three years of

supervised release. The court also ordered Brown to make restitution

in the amount of $15,663.59. Brown's counsel has filed a brief in

accordance with Anders v. California, 386 U.S. 738 (1967), raising

two issues but stating that, in his view, there are no meritorious issues

for appeal. Brown's counsel provided him with a copy of the Anders

brief and informed him of his right to file a pro se supplemental brief,

but Brown has not filed such a brief on his own behalf.

Brown's counsel first questions whether the district court complied

with the requirements of Fed. R. Crim. P. 11 when accepting Brown's

guilty plea. We accord great deference to the district court's conduct

of the Rule 11 hearing and evaluate alleged Rule 11 violations under

a harmless error standard.2 We will vacate a conviction resulting from

a guilty plea only if the trial court's violation of Rule 11 affected a

defendant's substantial rights.3

Following a de novo review of the entire record, we conclude that

the district court complied with Rule 11 in accepting Brown's guilty

plea by fully discussing the nature and elements of the charge against

Brown, the applicable penalties he faced, including the effect of

supervised release, and ensuring that he consulted with and was satisfied with his counsel. The court also addressed the rights Brown forfeited, the impact of the Sentencing Guidelines, and ascertained that

there was a factual basis for the plea. Finally, the court questioned

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1 See 18 U.S.C. § 2113(a) (1994).

2 See United States v. DeFusco, 949 F.2d 114, 116-17 (4th Cir. 1991).

3 Id. at 117.

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Brown to ensure that his plea was voluntary.4 Accordingly, we find

no violation of Rule 11.

Counsel also disputes whether the district court recognized its

authority during sentencing to grant a downward departure from the

career offender guideline on the basis that such a criminal history category over-represented Brown's criminal history. 5 A decision not to

depart is not reviewable, unless the decision was based on the court's

mistaken perception that it lacked the power to depart.6

Here, the court was aware of its authority to depart from the career

offender guidelines but exercised its discretion by refusing to do so.

The court denied defense counsel's motion for departure after considering counsel's arguments. Because nothing in the record suggests

that the court erroneously believed it lacked the authority to depart,

we decline to review the court's decision.

As required by Anders, we have examined the entire record and

find no meritorious issues for appeal. Accordingly, we affirm

Brown's conviction and sentence. 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. 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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4 See Fed. R. Crim. P. 11(d).

5 See U.S. Sentencing Guidelines Manual § 4B1.1 (1995).

6 See United States v. Hall, 977 F.2d 861, 863 (4th Cir. 1992).

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