UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                      No. 98-4523
CLARENCE WILLIAM WEST, a/k/a Sld
Dft 5:96:CR10-1, a/k/a Will,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, District Judge.
(CR-96-10)

Submitted: March 16, 1999

Decided: March 29, 1999

Before WIDENER, MICHAEL, and KING, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Richard A. Culler, CULLER & CULLER, P.A., Charlotte, North Car-
olina, for Appellant. Timika Shafeek, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Clarence William West pled guilty to conspiracy to possess with
intent to distribute cocaine and cocaine base and marijuana in viola-
tion of 21 U.S.C. § 846 (1994). West appeals from the district court
judgment sentencing him to 210 months' imprisonment. His attorney
filed a brief in accordance with Anders v. California, 386 U.S. 738
(1967), addressing whether the district court erred in denying down-
ward departure to West. West was informed of his right to file a pro
se supplemental brief but has failed to do so.

Prior to sentencing, West contended that the pre-sentence report's
criminal history category over-represented his prior criminal history
and that departure was warranted under § 4A1.3 of the Sentencing
Guidelines. See United States Sentencing Guidelines Manual § 4A1.3
(1995). West's criminal history was determined to be Category III
based on six points assessed under the Guidelines. Four points were
assessed for convictions for (1) assault with a deadly weapon; (2)
allowing a vicious dog to run at large; (3) driving while license
revoked; and (4) a noise ordinance violation. Two additional points
were assessed because West was on probation when he committed the
drug offense. West argued that the convictions for allowing his dogs
to run loose and driving with a revoked license, as well as the noise
ordinance violation, were not serious enough to be considered in cal-
culating his criminal history. The court agreed as to the conviction
concerning the dogs and the noise ordinance violation. The court
determined, however, that the point assessed for driving with a
revoked license should not be excluded in calculating the criminal
history.

In making that decision, the court considered that the revoked
license conviction was one in a series of motor vehicle violations
between 1992 and 1994. At the time of the conviction, West had two
recent prior convictions for driving without a license and two more
for operating a motorcycle without a motorcycle endorsement. The
court stated that because of the numerous prior convictions, "without
the Government making concession on that point, I don't think a
judge can in good conscience delete that particular point. . . ." After

                    2
subtracting the two points for the dog and noise ordinance incidents,
West was left with four criminal history points. This kept him at
Level III. If the court had excluded the driving conviction, West
would have had a Level II criminal history category. The court also
declined to grant West's motions for downward departure based upon
the totality of the circumstances and diminished capacity. See USSG
§§ 5K2.0, 5K2.13. West received a 210 month sentence, the lowest
sentence within the guidelines range.

A district court's decision not to depart from the Sentencing Guide-
lines is not subject to appellate review unless the refusal to depart is
based on the mistaken belief that the court lacked the authority to
depart. See United States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir.
1990). West argues that the district court misunderstood its authority
to depart. He contends that the court believed it could not exclude the
motor vehicle conviction from the criminal history calculation
because West received two years' probation on the charge. (A convic-
tion of driving with a revoked license is not considered in the criminal
history assessment unless there was a resulting sentence of probation
of at least one year or a term of imprisonment of at least thirty days.
See USSG § 4A1.2(c)(1)). The record establishes, however, that the
court fully understood its authority to decline to include the convic-
tion in the calculation. Furthermore, West's argument is inconsistent
with the court's decision to exclude from the calculation the convic-
tion concerning West's dogs even though West received three years'
probation for that violation. Because the court did not misunderstand
its authority to exclude the violation in the criminal history calcula-
tion, the court's refusal to do so is not subject to appellate review.

West also contends that when the district court reviewed West's
criminal history, it should not have considered each offense for which
West was assessed points individually. Instead, he argues, it should
have considered only the Criminal History III category and decided
if it overstated West's history. This argument, however, is simply
another attempt to challenge the court's refusal to depart from the
criminal history category.

Addressing the court's refusal to grant downward departure based
upon the totality of the circumstances and alleged reduced mental
capacity, the court considered the arguments concerning departure

                    3
and determined that departure was not warranted. Sentencing was
within the range provided by the Guidelines, and there was no ques-
tion as to the court's authority to depart. Therefore, appellate review
is not available.

In accordance with Anders, we have examined the entire record in
this case and find no reversible error. We therefore affirm West's sen-
tence. 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 petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. See 4th
Cir. Local Rule 46(d). Counsel's motion must state that a copy
thereof was served on the client. See id.

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

                     4
