                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                                No. 02-4353
RONALD L. MAXWELL,
             Defendant-Appellant.
                                       
           Appeal from the United States District Court
    for the Southern District of West Virginia, at Parkersburg.
            Charles H. Haden II, Chief District Judge.
                           (CR-01-226)

                      Submitted: October 10, 2002

                      Decided: October 18, 2002

   Before WILLIAMS, KING, and GREGORY, Circuit Judges.



Dismissed in part and affirmed in part by unpublished per curiam
opinion.


                              COUNSEL

Jeffrey A. Elder, LAW OFFICE OF JEFFREY A. ELDER, Parkers-
burg, West Virginia, for Appellant. Kasey Warner, United States
Attorney, Karen B. George, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
2                    UNITED STATES v. MAXWELL
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

PER CURIAM:

   Ronald L. Maxwell pled guilty to possession of child pornography
that has been transported in interstate commerce, in violation of 18
U.S.C. § 2252A(a)(5)(B) (2000). He was sentenced to 57 months’
imprisonment. Maxwell’s attorney has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), in which he represents that
there are no arguable issues of merit in this appeal. Nevertheless, in
his brief, counsel addresses the issue of whether the district court
erred in (1) denying Maxwell’s motion for a downward departure; and
(2) convicting him pursuant to a guilty plea for child pornography, in
light of Ashcroft v. Free Speech Coalition, 122 S. Ct. 1389 (2002).
Although advised of his right to do so, Maxwell did not file a pro se
supplemental brief.

   Because we find that the district court’s decision to deny Max-
well’s motion for a downward departure is not reviewable, we dismiss
that portion of the appeal. A district court’s refusal to grant a down-
ward departure is not reviewable on appeal unless the court errone-
ously believed that it lacked the authority to depart. United States v.
Bayerle, 898 F.2d 28, 30-31 (4th Cir. 1990). The record here clearly
shows the district court recognized that it had the authority to grant
Maxwell’s motion, but declined to do so under the circumstances.

   We further find that Maxwell’s contention that his guilty plea is
involuntary in light of Ashcroft v. Free Speech Coalition, 122 S. Ct.
1389 (2002), is without merit. Because Maxwell did not raise this
issue below, we review the claim for plain error. Fed. R. Crim. P.
52(b); United States v. Olano, 507 U.S. 725, 732 (1993). Specifically,
Maxwell maintains he was adjudged guilty under a statute that was
overturned by Ashcroft. As noted by counsel, however, Ashcroft over-
turned the ban on virtual child pornography under the Child Pornogra-
phy Prevention Act of 1996, not actual child pornography. See
                     UNITED STATES v. MAXWELL                        3
Ashcroft, 122 S. Ct. at 1405-06 (2002) (analyzing different provisions
of the Child Pornography Prevention Act separately and concluding
that only certain subsections violated the First Amendment). Because
Maxwell’s offense of conviction involved images of actual children,
not virtual images, his reliance on Ashcroft is misplaced. Accordingly,
we affirm Maxwell’s conviction.

   We have examined the entire record in this case in accordance with
the requirements of Anders and find no meritorious issues for appeal.
The 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. Coun-
sel’s motion must state that a copy thereof was served on the client.
We therefore dismiss in part and affirm in part. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court, and argument would not aid
the decisional process.

                                               DISMISSED IN PART;
                                                AFFIRMED IN PART
