### UNPUBLISHED



# UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT



#  U NITED S TATES OF A MERICA ,

Plaintiff-Appellee,

v. No. 00-4689



# 
E DWARD K. F ALIN ,

Defendant-Appellant. 

# 
Appeal from the United States District Court for the Western District of Virginia, at Big Stone Gap.

James P. Jones, District Judge. (CR-00-10014) Submitted: March 23, 2001 Decided: April 16, 2001 Before MICHAEL and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed in part and dismissed in part by unpublished per curiam opinion.

COUNSEL Monroe Jamison, Abingdon, Virginia, for Appellant. Robert P. Crouch, Jr., United States Attorney, Eric M. Hurt, Assistant United States Attorney, Abington, Virginia, for Appellee.Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).

OPINION
PER CURIAM: Edward Falin appeals his forty-six-month sentence imposed after he pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C.A. § 922(g)(1) (West 2000). Falin’s attorney has filed a brief in accordance with Anders v. California , 386 U.S. 738 (1967), raising two sentencing issues on appeal but stating that, in his view,there are no meritorious grounds for appeal. Falin filed a pro se supplemental brief, in which he raised the same issues. We affirm in part and dismiss in part. At sentencing, Falin requested a downward departure under U.S. Sentencing Guidelines Manual § 5K2.0, p.s. (1998), on the groundthat his case fell outside the heartland of cases covered by the guidelines. The district court considered Falin’s arguments, recognized its authority to depart, and elected not to depart. Where the sentencing court was aware of its authority to depart and simply declined to do so, we lack authority to review its decision. United States v. Edwards , 188 F.3d 230, 238-39 (4th Cir. 1999), cert. denied , 528 U.S. 1130 (2000). We therefore dismiss this portion of the appeal.Falin also contends that the Government breached the plea agreement by failing to move for a substantial assistance departure under USSG § 5K1.1, p.s. Because the Government retained the discretion to file a § 5K1.1 motion and because Falin failed to allege an unconstitutional motive or that the failure to file was not related to a legitimate government end, his claim is without merit. United States v. LeRose , 219 F.3d 335, 341-42 (4th Cir. 2000) (citing Wade v. United States , 504 U.S. 181, 185-86 (1992)). As required by Anders, we have examined the entire record and find no other meritorious issues for appeal. We therefore affirmFalin’s conviction and sentence and dismiss Falin’s appeal of the dis2 U NITED S TATES v. F ALINtrict court’s refusal to depart under USSG § 5K2.0, p.s. This courtrequires 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 IN PART AND DISMISSED IN PART 3 U NITED S TATES v. F ALIN