                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                              No. 00-4689
EDWARD K. FALIN,
             Defendant-Appellant.
                                       
            Appeal from the United States District Court
      for the Western District of Virginia, at Big Stone Gap.
                  James P. Jones, District Judge.
                          (CR-00-10014)

                      Submitted: March 23, 2001

                       Decided: April 16, 2001

        Before MICHAEL and MOTZ, Circuit Judges, and
               HAMILTON, Senior Circuit Judge.



Affirmed in part and dismissed in part by unpublished per curiam
opinion.


                             COUNSEL

Monroe Jamison, Abingdon, Virginia, for Appellant. Robert P.
Crouch, Jr., United States Attorney, Eric M. Hurt, Assistant United
States Attorney, Abington, Virginia, for Appellee.
2                        UNITED STATES v. FALIN
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                               OPINION

PER CURIAM:

   Edward Falin appeals his forty-six-month sentence imposed after
he pled guilty to being a felon in possession of a firearm, in violation
of 18 U.S.C.A. § 922(g)(1) (West 2000). Falin’s attorney has filed a
brief in accordance with Anders v. California, 386 U.S. 738 (1967),
raising two sentencing issues on appeal but stating that, in his view,
there are no meritorious grounds for appeal. Falin filed a pro se sup-
plemental brief, in which he raised the same issues. We affirm in part
and dismiss in part.

   At sentencing, Falin requested a downward departure under U.S.
Sentencing Guidelines Manual § 5K2.0, p.s. (1998), on the ground
that his case fell outside the heartland of cases covered by the guide-
lines. The district court considered Falin’s arguments, recognized its
authority to depart, and elected not to depart. Where the sentencing
court was aware of its authority to depart and simply declined to do
so, we lack authority to review its decision. United States v. Edwards,
188 F.3d 230, 238-39 (4th Cir. 1999), cert. denied, 528 U.S. 1130
(2000). We therefore dismiss this portion of the appeal.

   Falin also contends that the Government breached the plea agree-
ment by failing to move for a substantial assistance departure under
USSG § 5K1.1, p.s. Because the Government retained the discretion
to file a § 5K1.1 motion and because Falin failed to allege an uncon-
stitutional motive or that the failure to file was not related to a legiti-
mate government end, his claim is without merit. United States v.
LeRose, 219 F.3d 335, 341-42 (4th Cir. 2000) (citing Wade v. United
States, 504 U.S. 181, 185-86 (1992)).

   As required by Anders, we have examined the entire record and
find no other meritorious issues for appeal. We therefore affirm
Falin’s conviction and sentence and dismiss Falin’s appeal of the dis-
                        UNITED STATES v. FALIN                          3
trict court’s refusal to depart under USSG § 5K2.0, p.s. This court
requires that counsel inform his client, in writing, of his right to peti-
tion 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 conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

                   AFFIRMED IN PART AND DISMISSED IN PART
