UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                               No. 97-4211
FLOYD LAMBERT, a/k/a Floyd
Jenkins,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Patrick Michael Duffy, District Judge.
(CR-95-1059)

Submitted: April 30, 1998

Decided: June 26, 1998

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

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Affirmed by unpublished per curiam opinion.

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COUNSEL

John F. Martin, MARTIN LAW FIRM, Charleston, South Carolina,
for Appellant. Miller Williams Shealy, Jr., OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, South Carolina, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Floyd Lambert appeals the 105-month sentence imposed upon his
conviction of one count of conspiracy to possess and distribute crack
cocaine, 21 U.S.C. §§ 841, 846 (1994). Lambert's counsel has filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
addressing whether (1) Lambert's sentence was excessive;
(2) Lambert was entitled to a greater departure for substantial assis-
tance; (3) Lambert's sentence was impermissibly disparate from that
of his codefendants; (4) the district court failed to make specific fac-
tual findings with respect to Lambert's role in the conspiracy; and
(5) the district court committed clear error in holding Lambert
accountable for 35-50 grams of crack cocaine. Lambert has filed a
supplemental pro se brief raising two claims: (1) that the district
court improperly added two points to his criminal history for commit-
ting the offense while on probation, and (2) that a prior conviction for
simple assault and battery was improperly counted as assault and bat-
tery of a high aggravated nature. Because our review of the entire
record reveals no reversible error, we affirm.

Lambert's counsel raises as a potential claim, first, that Lambert's
sentence was excessive. However, because Lambert was sentenced
within the applicable guideline range, this claim is not reviewable on
appeal. See United States v. Porter, 909 F.2d 789, 794-95 (4th Cir.
1990) (holding that criminal defendant is precluded from seeking "re-
view of a sentencing court's discretion in setting a sentence anywhere
within a properly calculated sentencing range"); see also United
States v. Jones, 18 F.3d 1145, 1151 (4th Cir. 1994) (challenge to sen-
tence at top of guideline range not authorized by statute).

Next, Lambert's counsel challenges the extent of the district court's
downward departure for substantial assistance, USSG§ 5K1.1.* We
_________________________________________________________________
*U.S. Sentencing Guidelines Manual (1995).

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lack jurisdiction to review the extent of a downward departure absent
a showing that the sentence imposed was in violation of law or
resulted from an incorrect application of the sentencing guidelines.
See United States v. Hill, 70 F.3d 321, 324-25 (4th Cir. 1995). Lam-
bert has not made such a showing. To the extent Lambert challenges
the disparity between his sentence and that of his codefendants, dis-
parity of sentences alone is not an abuse of discretion where, as here,
the defendant's sentence falls within the applicable guideline range.
See United States v. Allen, 24 F.3d 1180, 1188 (10th Cir. 1994) ("We
reject claims of disparate sentences when they are based solely on a
lesser sentence imposed on a codefendant, and the defendant's sen-
tence falls within the applicable guideline range.").

Finally, Lambert's counsel claims that the district court failed to
make specific factual findings regarding his role in the conspiracy and
clearly erred in holding him accountable for 30 to 50 grams of crack
cocaine. After considering Lambert's objections to the presentence
report, the district court adopted the factual findings recommended in
the presentence report, thereby adopting both the amount of drugs and
the base offense level stipulated in Lambert's plea agreement.
Accordingly, we find these claims to be without merit.

Lambert claims in his supplemental pro se brief that the district
court improperly added two points to his criminal history for commit-
ting the offense while on probation, see USSG § 4A1.1(d), because,
according to Lambert, he was not on probation at the time he commit-
ted the instant offense. Lambert was charged in the indictment with
conspiring to possess and distribute crack cocaine"[f]rom on or about
January 1, 1991, and continuing thereafter up to and including the
date of this indictment [Feb. 15, 1996]." According to the presentence
report, Lambert was placed on probation in November 1993. There-
fore, the district court properly determined that Lambert committed
the offense while on probation. See USSG§ 4A1.1(d) commentary,
note 4 ("Two points are added if the defendant committed any part
of the instant offense . . . while under any criminal justice sentence,
including probation") (emphasis added).

Second, Lambert claims that the district court improperly counted
a conviction for assault and battery that was later dismissed. The
assault and battery charge was one of three counts that Lambert was

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charged with in October 1993. That charge was dismissed but Lam-
bert was convicted of the remaining charges and sentenced to one
year imprisonment, suspended for one year with probation. Lambert
subsequently violated probation and was sentenced to serve 90 days.
Accordingly, he was properly assessed two additional points under
USSG § 4A1.1(b) (providing for two-point assessment for each prior
sentence of imprisonment of at least sixty days).

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 dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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