                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.
                                                  No. 03-4669
ISMAEL OCEGUEDA GONZALEZ, a/k/a
Mario Hernandez,
              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-03-65)

                      Submitted: January 7, 2004

                      Decided: January 28, 2004

     Before WILLIAMS, KING, and SHEDD, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                             COUNSEL

Louis C. Allen, III, Federal Public Defender, Gregory Davis, Assis-
tant Federal Public Defender, Greensboro, North Carolina, for Appel-
lant. Angela Hewlett Miller, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.
2                     UNITED STATES v. GONZALEZ
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                               OPINION

PER CURIAM:

   Ismael Ocegueda Gonzalez appeals his conviction and sentence
after pleading guilty to reentering the United States without first
obtaining the consent of the United States Attorney General in viola-
tion of 8 U.S.C. § 1326(a), (b)(2) (2000). Gonzalez’s attorney has
filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
stating that, in his opinion, there are no meritorious issues for appeal.
Although concluding that such allegations lacked merit, counsel
asserted claims that the district court abused its discretion in denying
Gonzalez’s motion for downward departure and committed plain error
by not dismissing the indictment. Gonzalez has been informed of his
right to file a pro se supplemental brief, but has not done so. We
affirm Gonzalez’s conviction and sentence.

   Gonzalez contends the district court abused its discretion when it
denied his motion for downward departure. A district court’s decision
not to depart below the guidelines range is not reviewable unless the
court mistakenly believed that it lacked authority to depart. United
States v. Carr, 271 F.3d 172, 176-77 (4th Cir. 2001). Here, the district
court recognized that it had the authority to depart, but chose to exer-
cise its discretion against any such departure. The court’s decision
therefore is not subject to our review. Id.

   Gonzalez’s second argument is that the district court committed
plain error when it failed to dismiss the indictment. Before we may
correct a trial error to which there was no contemporaneous objection,
three factors must be shown: (1) there was error, (2) the error was
plain, and (3) the error affected substantial rights. United States v.
Cotton, 535 U.S. 625, 631-32 (2002). We may exercise our discretion
to correct the error when all three factors are met and when the error
"‘seriously affects the fairness, integrity, or public reputation of judi-
cial proceedings.’" Id. (quoting Johnson v. United States, 520 U.S.
                      UNITED STATES v. GONZALEZ                        3
461, 467 (1997)). We conclude that the district court did not err.
Moreover, Gonzalez’s guilty plea waived any antecedent non-
jurisdictional errors. See Tollett v. Henderson, 411 U.S. 258, 267
(1973)).

   As required by Anders, we have reviewed the entire record and
have found no meritorious issues for appeal. We therefore affirm
Gonzalez’s conviction and sentence. 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. 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
