                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-2703
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the Western
                                        * District of Arkansas
Raymond Rufino Montez,                  *
                                        *     [UNPUBLISHED]
             Appellant.                 *
                                   ___________

                          Submitted: February 7, 2003

                               Filed: March 5, 2003
                                    ___________

Before McMILLIAN, RILEY, and MELLOY, Circuit Judges.
                            ___________

PER CURIAM.

       Raymond Rufino Montez appeals from the final judgment entered in the
District Court1 for the Western District of Arkansas after he pleaded guilty pursuant
to a written plea agreement to distributing 50 grams or more of methamphetamine
mixture, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(viii). The district court
sentenced Montez to 108 months imprisonment and 5 years supervised release. His
counsel has moved to withdraw and filed a brief under Anders v. California, 386 U.S.

      1
        The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Arkansas.
738 (1967), raising for reversal the district court’s drug quantity determination and
refusal to grant a downward departure. For the reasons discussed below, we affirm.

      The district court did not plainly err by considering--as contemplated by the
plea agreement--drug quantities from Montez’s relevant conduct when determining
his base offense level. See U.S.S.G. §§ 1B1.3 (relevant conduct includes acts and
omissions “that were part of the same course of conduct or common scheme or plan
as the offense of conviction”), 2D1.1, comment. (n.12) (court may consider as
relevant conduct “quantities of drugs not specified in the count of conviction”);
United States v. Montanye, 996 F.2d 190, 192 (8th Cir. 1993) (standard of review).
Further, the district court’s discretionary refusal to depart downward is unreviewable
on appeal. See United States v. Lim, 235 F.3d 382, 385 (8th Cir. 2000).

      Having found no nonfrivolous issues following our independent review of the
record in accordance with Penson v. Ohio, 488 U.S. 75, 80 (1988), we grant counsel’s
motion to withdraw.

      Accordingly, we affirm.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         -2-
