UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 98-4523

CLARENCE WILLIAM WEST, a/k/a Sld

Dft 5:96:CR10-1, a/k/a Will,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of North Carolina, at Statesville.

Richard L. Voorhees, District Judge.

(CR-96-10)

Submitted: March 16, 1999

Decided: March 29, 1999

Before WIDENER, MICHAEL, and KING, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Richard A. Culler, CULLER & CULLER, P.A., Charlotte, North Carolina, for Appellant. Timika Shafeek, OFFICE OF THE UNITED

STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Clarence William West pled guilty to conspiracy to possess with

intent to distribute cocaine and cocaine base and marijuana in violation of 21 U.S.C. § 846 (1994). West appeals from the district court

judgment sentencing him to 210 months' imprisonment. His attorney

filed a brief in accordance with Anders v. California, 386 U.S. 738

(1967), addressing whether the district court erred in denying downward departure to West. West was informed of his right to file a pro

se supplemental brief but has failed to do so.

Prior to sentencing, West contended that the pre-sentence report's

criminal history category over-represented his prior criminal history

and that departure was warranted under § 4A1.3 of the Sentencing

Guidelines. See United States Sentencing Guidelines Manual § 4A1.3

(1995). West's criminal history was determined to be Category III

based on six points assessed under the Guidelines. Four points were

assessed for convictions for (1) assault with a deadly weapon; (2)

allowing a vicious dog to run at large; (3) driving while license

revoked; and (4) a noise ordinance violation. Two additional points

were assessed because West was on probation when he committed the

drug offense. West argued that the convictions for allowing his dogs

to run loose and driving with a revoked license, as well as the noise

ordinance violation, were not serious enough to be considered in calculating his criminal history. The court agreed as to the conviction

concerning the dogs and the noise ordinance violation. The court

determined, however, that the point assessed for driving with a

revoked license should not be excluded in calculating the criminal

history.

In making that decision, the court considered that the revoked

license conviction was one in a series of motor vehicle violations

between 1992 and 1994. At the time of the conviction, West had two

recent prior convictions for driving without a license and two more

for operating a motorcycle without a motorcycle endorsement. The

court stated that because of the numerous prior convictions, "without

the Government making concession on that point, I don't think a

judge can in good conscience delete that particular point. . . ." After

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subtracting the two points for the dog and noise ordinance incidents,

West was left with four criminal history points. This kept him at

Level III. If the court had excluded the driving conviction, West

would have had a Level II criminal history category. The court also

declined to grant West's motions for downward departure based upon

the totality of the circumstances and diminished capacity. See USSG

§§ 5K2.0, 5K2.13. West received a 210 month sentence, the lowest

sentence within the guidelines range.

A district court's decision not to depart from the Sentencing Guidelines is not subject to appellate review unless the refusal to depart is

based on the mistaken belief that the court lacked the authority to

depart. See United States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir.

1990). West argues that the district court misunderstood its authority

to depart. He contends that the court believed it could not exclude the

motor vehicle conviction from the criminal history calculation

because West received two years' probation on the charge. (A conviction of driving with a revoked license is not considered in the criminal

history assessment unless there was a resulting sentence of probation

of at least one year or a term of imprisonment of at least thirty days.

See USSG § 4A1.2(c)(1)). The record establishes, however, that the

court fully understood its authority to decline to include the conviction in the calculation. Furthermore, West's argument is inconsistent

with the court's decision to exclude from the calculation the conviction concerning West's dogs even though West received three years'

probation for that violation. Because the court did not misunderstand

its authority to exclude the violation in the criminal history calculation, the court's refusal to do so is not subject to appellate review.

West also contends that when the district court reviewed West's

criminal history, it should not have considered each offense for which

West was assessed points individually. Instead, he argues, it should

have considered only the Criminal History III category and decided

if it overstated West's history. This argument, however, is simply

another attempt to challenge the court's refusal to depart from the

criminal history category.

Addressing the court's refusal to grant downward departure based

upon the totality of the circumstances and alleged reduced mental

capacity, the court considered the arguments concerning departure

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and determined that departure was not warranted. Sentencing was

within the range provided by the Guidelines, and there was no question as to the court's authority to depart. Therefore, appellate review

is not available.

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

this case and find no reversible error. We therefore affirm West's 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. See 4th

Cir. Local Rule 46(d). Counsel's motion must state that a copy

thereof was served on the client. See id.

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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