UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 99-4724

NATHANIEL EDWARD HARRIS,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-99-79-1)

Submitted: March 23, 2000

Decided: March 31, 2000

Before LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges.

_________________________________________________________________

Dismissed in part and affirmed in part by unpublished per curiam
opinion.

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COUNSEL

Louis C. Allen, III, Federal Public Defender, William S. Trivette,
Assistant Federal Public Defender, John A. Dusenbury, Jr., Assistant
Federal Public Defender, Greensboro, North Carolina, for Appellant.
Walter C. Holton, Jr., United States Attorney, Angela H. Miller,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Nathaniel Edward Harris pled guilty to being a felon in possession
of a firearm and possession with intent to distribute cocaine base and
was sentenced to two-hundred thirty month's imprisonment. Harris'
attorney has filed a brief in accordance with Anders v. California, 386
U.S. 738 (1967). Counsel states that there are no meritorious grounds
for appeal but raises the single claim that the district court erred in
denying his motion for a downward departure. Harris was notified of
his right to file a supplemental brief but has not done so. In accor-
dance with the requirements of Anders, we have considered the briefs
on appeal and examined the entire record for meritorious issues. We
find no error and dismiss in part and affirm in part.

The issue raised by counsel in the Anders brief is that the criminal
history category as calculated under the United States Sentencing
Guidelines and Harris' classification as an Armed Career Criminal,
although accurate, significantly overstated the seriousness of his crim-
inal history and his likelihood for future dangerousness. A district
court's decision not to depart from the sentencing guidelines is not
subject to appellate review unless the refusal to depart is based on the
mistaken belief that the court lacked the authority to do so. See United
States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir. 1990). Because it is
clear from the record that the court knew that it had the authority to
depart and chose not to do so, we decline to review the denial of the
motion to depart and dismiss Harris' appeal as to that issue.

Pursuant to Anders, this Court has reviewed the record for potential
error and has found none. Accordingly, although we dismiss that por-
tion of the appeal challenging the denial of the motion for downward
departure, we affirm Harris' conviction and sentence in all other
respects. We deny counsel's motion to withdraw. This Court requires
that counsel inform his client, in writing, of his right to petition to the

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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.

DISMISSED IN PART; AFFIRMED IN PART

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