UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                       No. 94-5928
JAMES KWADWO KWARTENG, a/k/a
Nana Kwarteng,
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-94-99-MJG)

Submitted: March 21, 1996

Decided: April 2, 1996

Before NIEMEYER and MICHAEL, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

James K. Bredar, Federal Public Defender, Kathryn R. Frey, Assistant
Federal Public Defender, Baltimore, Maryland, for Appellant.
Lynne A. Battaglia, United States Attorney, Robert R. Harding,
Assistant United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

James Kwadwo Kwarteng pled guilty to one count of conspiracy
to import more than one kilogram of heroin, 21 U.S.C.A. § 963 (West
Supp. 1995), and was sentenced to a term of 97 months imprisonment
after the government recommended a two-level departure for substan-
tial assistance. United States Sentencing Commission, Guidelines
Manual, § 5K1.1 (Nov. 1994). Kwarteng's attorney has moved to
withdraw and has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), raising one issue but stating that, in
her view, there are no meritorious grounds for appeal. Kwarteng has
filed a pro se supplemental brief. After a thorough review of the briefs
and the record, we deny the motion to withdraw at this time, and we
affirm.

Kwarteng's plea agreement provided that the government might, in
its sole discretion, move for a substantial assistance departure under
Fed. R. Crim. P. 35 after sentencing if Kwarteng rendered substantial
assistance in the prosecution of others. Kwarteng subsequently testi-
fied in the trial of co-defendant Akyaw Owusu, but refused to testify
against a number of Ghanaians charged with money laundering. At
Kwarteng's sentencing, the government recommended a two-level
downward departure under USSG § 5K1.1 and informed the court
that a four-level departure would have been recommended had Kwar-
teng agreed to assist in the prosecution of the money launderers.
Defense counsel asked the district court to depart by four levels
because of the quality of Kwarteng's assistance in the prosecution of
Owusu. The district court departed by two levels, finding that Kwar-
teng's assistance had been more limited than it could have been.

In the Anders brief, Kwarteng's attorney suggests that the district
court erred in departing by only two levels. This issue is without merit
because a defendant may not appeal the extent of a downward depar-

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ture except when the departure decision resulted in a sentence
imposed in violation of law or resulted from an incorrect application
of the guidelines. United States v. Hill, 70 F.3d 321, 324 (4th Cir.
1995).

In his pro se supplemental brief, Kwarteng contends that the gov-
ernment promised to recommend a four-level departure based on his
testimony against Owusu but reneged on its promise after he decided
not to testify in the other trial. He terms himself a victim of vindictive
prosecution. He argues that his attorney was ineffective in failing to
make known to the district court the government's prior promise to
recommend a four-level departure, and in failing to request a depar-
ture based on his age, his health, his family circumstances, and his
community involvement. We find no merit in the first claim. The plea
agreement did not obligate the government to move for a downward
departure and that fact was made clear to Kwarteng when he entered
his guilty plea. Therefore, Kwarteng is not entitled to relief because
the government recommended a lesser departure than was contem-
plated before he terminated his assistance. We note that the reasons
for the government's change of heart were explained at sentencing.

A claim of ineffective assistance should be raised in a motion
under 28 U.S.C. § 2255 (1988), not on direct appeal, unless the record
conclusively establishes that counsel did not provide effective assis-
tance. United States v. Matzkin, 14 F.3d 1014, 1017 (4th Cir. 1994).
Because the record does not conclusively demonstrate ineffective
assistance, we do not address the issue.

In accordance with Anders, we have examined the entire record in
this case and find no meritorious issues for appeal. Defense counsel's
current motion to withdraw is denied. This court requires that counsel
inform her 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 again 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 affirm Kwarteng's conviction and sentence. We dispense with
oral argument because the facts and legal contentions are adequately

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presented in the record and briefs, and oral argument would not aid
the decisional process.

AFFIRMED

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