UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 95-5479

HAKEEM SHONEKAN,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Herbert N. Maletz, Senior Judge, sitting by designation.
(CR-94-337-MJG)

Submitted: April 15, 1996

Decided: April 29, 1996

Before ERVIN and MOTZ, Circuit Judges, and CHAPMAN,
Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William B. Purpura, Baltimore, Maryland, for Appellant. Maury S.
Epner, OFFICE OF THE UNITED STATES ATTORNEY, Green-
belt, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Hakeem Shonekan pled guilty to attempted possession of 2.8 kilo-
grams of heroin with intent to distribute, 21 U.S.C.A. § 846 (West
Supp. 1995). He received a sentence of 87 months imprisonment. His
attorney has filed a brief in accordance with Anders v. California, 386
U.S. 738 (1967), asserting that the district court may have abused its
discretion in failing to depart under USSG § 5K2.01 and clearly erred
in refusing Shonekan a minor role adjustment, USSG§ 3B1.2(b), but
concluding that these issues are without merit. Shonekan has filed a
pro se supplemental brief addressing the same issues. We affirm.

Shonekan stipulated that he flew from Nigeria to Dallas, Texas,
with two suitcases, each of which had a secret compartment contain-
ing heroin. When he learned in Dallas that the suitcases had been mis-
routed, Shonekan's behavior aroused the suspicion of the United
States Customs Inspector who dealt with him. Shonekan flew on to
Maryland, and the suitcases were searched when they arrived in Dal-
las two days later. The heroin was discovered, most of it was
removed, and electronic transponders were placed in the secret com-
partments. A Customs agent then accompanied the suitcases to Dulles
Airport, outside Washington, D.C. Shonekan came to the airport with
his father several times but failed to retrieve the luggage because he
came at the wrong hours. The suitcases were then delivered to Shone-
kan's home by an undercover agent. Shonekan's wife put the suit-
cases in the car and drove to a gas station where Shonekan was
waiting. After the couple looked around, Shonekan took the wheel
and drove away at high speed, ignoring stop signs and driving the
wrong way on a one-way street. His attempt to evade the agents who
were following him succeeded. Shonekan and his father subsequently
opened the suitcases in a motel room and abandoned them there.
Shonekan was arrested a month later in New York.

At his sentencing, Shonekan claimed that he had been used as a
courier by his father and stepmother. He conceded that, at least by the
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1 United States Sentencing Commission, Guidelines Manual (Nov.
1994).

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time he received the suitcases in Maryland, he knew the suitcases
contained drugs. However, he requested a minor role adjustment
because he allegedly did not know the amount of heroin and did not
stand to profit from its sale. A minor participant is one who is less
culpable than most other participants in the offense. USSG § 3B1.2,
comment. (n.3). The district court found that, based on his stipulated
conduct, Shonekan was not a minor participant. We find that the dis-
trict court's determination was not clearly erroneous.

Shonekan was sentenced below the mandatory minimum of ten
years under USSG § 5C1.2, the safety valve guideline. He also sought
to benefit from a proposed amendment to USSG § 2D1.12 by request-
ing a two-level departure under USSG § 5K2.0. The district court
declined to depart, finding that the guidelines in effect on the date of
sentencing should be applied, and also refused to continue sentencing
until November 1995. Because the district court based its decision not
to depart on a perceived lack of legal authority to do so, we review
the decision de novo. United States v. Hall, 977 F.2d 861, 863 (4th
Cir. 1992). The district court correctly determined that it could not
depart in anticipation of a proposed amendment to the guidelines. 18
U.S.C.A. § 3553(a)(4) (West Supp. 1995) (defendant's sentence
should be based on guidelines in effect on date of sentencing).
Amendments which are intended to be applied retroactively are listed
in USSG § 1B1.10. Amendment 151, the amendment in question, is
not listed there. Thus, Shonekan did not identify a factor which the
Sentencing Commission failed to consider.

We therefore affirm the sentence imposed by the district court. In
accordance with Anders, we have examined the entire record in this
case and find no meritorious issues for appeal. 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 peti-
tion would be frivolous, then counsel may move in this court for leave
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2 Effective November 1, 1995, a defendant who qualifies for sentencing
under USSG § 5C1.2 and has an offense level of 26 or more, may have
his offense level decreased by 2 levels under USSG§ 2D1.1(b)(4). See
USSG App. C, amendment 515. Shonekan was sentenced in June 1995.

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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 conten-
tions are adequately presented in the record and briefs, and oral argu-
ment would not aid the decisional process.

AFFIRMED

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