UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4689

EDWARD K. FALIN,

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Affirmed in part and dismissed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.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 ground

that 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 affirm

Falin’s conviction and sentence and dismiss Falin’s appeal of the dis2 UNITED STATES v. FALIN
trict court’s refusal to depart under USSG § 5K2.0, p.s. 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 IN PART AND DISMISSED IN PART

UNITED STATES v. FALIN 3