UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 99-4073

WARREN EDWARDS,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
James A. Beaty, Jr., District Judge.
(CR-98-180-1)

Submitted: June 29, 1999

Decided: July 19, 1999

Before WILKINS and LUTTIG, Circuit Judges,
and BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Walter C. Holton, Jr., United States
Attorney, Sandra J. Hairston, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Warren Edwards was arrested and indicted on a single count of
interstate domestic violence in violation of 18 U.S.C.A. § 2261(a)(1)
(West Supp. 1999). In September 1998 he pled guilty and was sen-
tenced to 120 months imprisonment, the statutory maximum penalty.
See 18 U.S.C.A. § 2261(b)(3). The court imposed the statutory maxi-
mum penalty because it was below the low end of the applicable sen-
tencing guideline range of 210-262 months.

Edwards' attorney has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967). Counsel states that there are no mer-
itorious grounds for appeal, but raises the following issue: whether
the district court erred by failing to grant him a downward departure
based on diminished capacity under the sentencing guidelines. The
United States filed a brief concurring in the conclusion that no merito-
rious issues existed for appeal. Although informed of his right to file
a supplemental brief, Edwards has not done so.

Because Edwards did not object to the calculation of his sentence
in the district court, such argument is waived on appeal absent plain
error. See United States v. Grubb, 11 F.3d 426, 440 (4th Cir. 1993).
Moreover, this court lacks authority to review a decision not to depart
from the applicable guideline range unless the district court's decision
is based upon the belief that it lacks the legal authority to depart. See
United States v. Brock, 108 F.3d 31, 33 (4th Cir. 1997).

Our review of the sentencing proceeding and the relevant guide-
lines reveals no error and no suggestion that the district court believed
it lacked authority to depart. We have also examined the entire record
in this case in accordance with the requirements of Anders, and find
no meritorious issues for appeal. Accordingly, we affirm the sentence
of the district court. This court requires that counsel inform his client,

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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 represen-
tation. 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

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