                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-2525
                                   ___________

United States of America,               *
                                        *
             Appellee,                  * Appeal from the United States
                                        * District Court for the
      v.                                * District of Nebraska.
                                        *
Terrell E. Newman,                      * [UNPUBLISHED]
                                        *
             Appellant.                 *
                                   ___________

                          Submitted: January 7, 2003
                              Filed: January 15, 2003
                                   ___________

Before BOWMAN, WOLLMAN, and BYE, Circuit Judges.
                        ___________

PER CURIAM.

       Terrell Newman pleaded guilty to distributing 50 grams or more of a mixture
or substance containing methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1), and to forfeiture of drug proceeds, under 21 U.S.C. § 853. The district court1
sentenced Newman to 120 months imprisonment and 4 years supervised release. On
appeal, counsel has moved to withdraw and filed a brief under Anders v. California,
368 U.S. 738 (1967), arguing that the government had orally agreed Newman’s


      1
      The Honorable Warren K. Urbom, United States District Judge for the District
of Nebraska.
criminal history would be Category IV and he would receive a 100-month prison
sentence, and that the district court erred in not granting a downward departure. We
affirm.

       Newman’s first argument is belied by the record. He did not object to the facts
underlying his Category V criminal history as determined in the presentence report.
See United States v. Beatty, 9 F.3d 686, 690 (8th Cir. 1993) (district court may accept
as true all unobjected-to factual statements in PSR). The written plea agreement
made no reference to an agreed-upon criminal history category, and clearly stated that
no agreements had been entered into other than those set forth in the document and
that none would be entered into except by written agreement of the parties. See
United States v. Van Thournout, 100 F.3d 590, 594 (8th Cir. 1996) (plea agreement
is governed by ordinary contract principles). Further, at the plea hearing Newman
affirmed that the written plea agreement set out all the terms, conditions, and
promises he had made with the government. See Nguyen v. United States, 114 F.3d
699, 703 (8th Cir. 1997) (defendant’s representations during plea-taking carry strong
presumption of verity).

       As for the second point, at sentencing the district court heard argument on
Newman’s downward-departure motion, reviewed the applicable facts set out in the
presentence report, and declined to depart. Given that the district court was aware of
its authority to depart, its discretionary refusal to do so is unreviewable. See United
States v. Orozco-Rodriguez, 220 F.3d 940, 942 (8th Cir. 2000).

      Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75
(1988), we find no other nonfrivolous issues. Accordingly, we affirm, and we grant
counsel’s motion to withdraw.




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A true copy.

      Attest:

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




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