*

 This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS

Filed 10/8/96

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

 v.

MYRON W. SOWELL,

Defendant-Appellant.

No. 96-3022

(D.C. No. 95-CR-20068)

(D. Kan.)

ORDER AND JUDGMENT*

Before TACHA, BALDOCK, and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Therefore, the case is ordered

submitted without oral argument.

Defendant Myron W. Sowell appeals the 121-month sentence imposed by the

district court after he pled guilty to distributing crack cocaine. We dismiss the appeal as

frivolous and grant defense counsel's pending motion to withdraw.

On August 23, 1995, an indictment was returned against defendant, charging him
-2-

with three counts of distributing crack cocaine. In return for his plea of guilty to count 1

of the indictment, the government agreed to dismiss the remaining two counts. 

On January 8, 1996, defendant asked the district court to depart downward from

the guideline range of 121 to 151 months, arguing a downward departure was appropriate

because of mitigating factors not adequately considered by the Sentencing Commission. 

Specifically, defendant argued (1) his criminal history category overstated the severity of

his prior convictions; (2) he was depressed and suffering from diminished capacity at the

time of the crimes because of his mother's death and the accompanying pressures; and (3)

the sentencing guidelines with regard to crack cocaine were unlawfully discriminatory

toward black defendants.

The district court denied defendant's motion for downward departure on January

16, 1996, and sentenced him to a term of 121 months. Defendant filed a pro se motion in

open court asking for downward departure pursuant to U.S.S.G. § 5K2.13 because of his

alleged diminished capacity, essentially setting forth the same reasons as in his previous

motion filed by his counsel. The court denied his pro se motion on March 7, 1996.

Defendant filed a timely notice of appeal. However, defense counsel has since

filed a brief alleging that, in his opinion, there are no meritorious appellate issues, and

requesting that he be allowed to withdraw pursuant to Anders v. California, 386 U.S. 738

(1967). Consistent with the dictates of Anders, defense counsel has pointed out three

issues that could arguably support an appeal.

The first "arguable" issue concerns the district court's authority to consider the

quantity of drugs involved in all three counts of the indictment in determining defendant's

offense level. We review a district court's factual findings concerning the amount of
-3-

drugs for which a defendant may be held accountable under a clearly erroneous standard. 

United States v. Ortiz, 993 F.2d 204, 207 (10th Cir. 1993). Here, although defendant pled

guilty to only one count of the indictment, the court was required to consider "all

quantities of contraband with which [the defendant] was directly involved." U.S.S.G. §

1B1.3, comment 2. As established in the presentence report (to which defendant did not

object), defendant made three sales of crack cocaine totaling approximately 76 grams. 

Because this was precisely the amount of cocaine relied upon by the district court in

establishing defendant's base offense level, we conclude any claim on this issue is

frivolous.

In his second "arguable" issue, defense counsel suggests the district court may

have erred in denying defendant's motion for downward departure. As noted by counsel

for the government, however, it is well established that we do not have jurisdiction to

hear an appeal concerning the district court's discretionary refusal to depart downward

from the guidelines. United States v. Diggs, 8 F.3d 1520, 1526 (10th Cir. 1993).

In his final "arguable" issue, defense counsel suggests the disparity in the

sentencing guidelines between powdered cocaine and crack cocaine unlawfully

discriminates against black defendants. We have repeatedly rejected this identical

argument. See, e.g., United States v. Williamson, 53 F.3d 1500, 1530 (10th Cir. 1995),

cert. denied 116 S. Ct. 218 (1995). Any claim based upon this issue is frivolous.

Because we find no appealable issues, we DISMISS this appeal as frivolous and

GRANT defense counsel's motion to withdraw.

Entered for the Court

Mary Beck Briscoe

Circuit Judge