                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                              No. 02-4211
BENJAMIN FRANKLIN WEAST,
              Defendant-Appellant.
                                       
           Appeal from the United States District Court
     for the Western District of North Carolina, at Asheville.
               Lacy H. Thornburg, District Judge.
                           (CR-01-47)

                  Submitted: December 20, 2002

                      Decided: January 15, 2003

     Before NIEMEYER, LUTTIG, and KING, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                             COUNSEL

Michael A. Kolb, MICHAEL A. KOLB ATTORNEY AT LAW,
Charlotte, North Carolina, for Appellant. Thomas Richard Ascik,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North
Carolina, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                      UNITED STATES v. WEAST
                              OPINION

PER CURIAM:

   Benjamin Franklin Weast appeals his conviction and thirty-two
month sentence pursuant to his guilty plea to two counts of uttering
counterfeit obligations or securities, in violation of 18 U.S.C. § 472
(2000). Weast entered a guilty plea to both counts, under North Caro-
lina v. Alford, 400 U.S. 25, 37 (1970), and was sentenced to thirty-
two months incarceration. Weast’s counsel has filed an appeal under
Anders v. California, 386 U.S. 738 (1967), and Weast has filed a pro
se supplemental brief.

   First, Weast argues the district court erred in denying him an
offense level adjustment for acceptance of responsibility. We review
a district court’s determination of whether a defendant is entitled to
an adjustment for acceptance of responsibility for clear error. United
States v. Ruhe, 191 F. 3d 376, 388 (4th Cir. 1999). Weast’s claim is
meritless. Weast entered a late guilty plea and denied liability for con-
duct related to his offenses. U.S. Sentencing Guidelines Manual
§ 3E1.1, comment. (n.1(h), n.6) (2000); United States v. Nale, 101
F.3d 1000, 1005 (4th Cir. 1996); United States v. Jones, 31 F.3d
1304, 1315 (4th Cir. 1994); United States v. Harris, 882 F.2d 902,
905-06 (4th Cir. 1989).

   Second, Weast argues the district court erred in failing to grant him
a downward departure for providing substantial assistance to the Gov-
ernment. We review this claim for clear error. United States v. Con-
ner, 930 F.2d 1073, 1076-77 (4th Cir. 1991). Weast’s claim is
meritless. Weast cannot establish that at sentencing he had provided
substantial assistance to the Government sufficient to warrant a down-
ward departure, or that there was a basis for departure absent the Gov-
ernment’s USSG § 5K1.1 motion. USSG § 5K1.1; USSG § 5K1.1,
comment. (n.3); Wade v. United States, 504 U.S. 181, 184-87 (1992);
United States v. Francois, 889 F.2d 1341, 143-45 (4th Cir. 1989).

   Third, Weast alleges he was subjected to prosecutorial misconduct.
These claims are meritless. Weast cannot establish the Government
erred by failing to move for a downward departure. USSG § 5K1.1.
Additionally, Weast cannot establish his statements to the police were
                       UNITED STATES v. WEAST                          3
altered, or that his criminal history calculation adversely effected his
sentence. USSG § 4A1.1-2.

   Fourth, Weast claims his sentence violates Apprendi v. New Jersey,
530 U.S. 466, 490 (2000). We review this claim for plain error. Fed.
R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-32
(1993). This claim is meritless. Weast’s sentence did not exceed the
statutory maximum, and consequently, he cannot establish his sen-
tence is erroneous. 18 U.S.C. § 472 (2000); USSG § 2B5.1(b);
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000); United States v.
Kinter, 235 F.3d 192, 201 (4th Cir. 2000), cert. denied, 532 U.S. 937
(2001).

  Fifth, Weast claims his trial counsel was ineffective. The record
does not clearly establish Weast’s trial counsel was ineffective, and
consequently, this claim must be raised under 28 U.S.C. § 2255
(2000). United States v. Richardson, 195 F.3d 192, 198 (4th Cir.
1999), cert. denied, 528 U.S. 1096 (2000); United States v. King, 119
F.3d 290, 295 (4th Cir. 1997).

   Accordingly, we affirm the Weast’s convictions and sentence. In
accordance with Anders, we have reviewed the entire record in this
case and find no other meritorious issues for appeal. We deny coun-
sel’s pending motion to withdraw from the case. This 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 peti-
tion 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 argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.

                                                            AFFIRMED
