                      United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 97-4067
                                     ___________

United States of America,                 *
                                          *
             Appellee,                    *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * Southern District of Iowa.
Nicholas Shan Cole,                       *
                                          *      [UNPUBLISHED]
             Appellant.                   *
                                     ___________

                            Submitted: July 7, 1998
                                Filed: July 10, 1998
                                    ___________

Before BOWMAN, Chief Judge, WOLLMAN, and LOKEN, Circuit Judges.
                             ___________

PER CURIAM.

       Pursuant to a written plea agreement, Nicholas Shan Cole pleaded guilty to
conspiring to distribute cocaine base, and to possessing it with intent to distribute, in
violation of 21 U.S.C. §§ 841(a)(1) and 846 (1994). The District Court1 sentenced him
to 292 months’ imprisonment and five years’ supervised release. On appeal, counsel
moved to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), and




      1
       The Honorable Charles R. Wolle, Chief Judge, United States District Court for
the Southern District of Iowa.
although we granted Cole permission to file a pro se supplemental brief, he has not
done so. We affirm.

       The first issue raised in the Anders brief is whether the District Court abused its
discretion in selecting Cole’s sentence. Cole was sentenced at the bottom of the
applicable Guidelines sentencing range, and counsel does not contend that the District
Court misapplied the Guidelines in calculating the applicable range, or otherwise
violated the law in imposing Cole’s sentence. Accordingly, we will not review the
abuse of discretion argument. See 18 U.S.C. § 3742(a) (bases for appeal of sentence
by defendant); United States v. Mihm, 13 F.3d 1200, 1205 (8th Cir. 1994) (applying
§ 3742(a)).

       The second Anders brief argument is that Cole was entitled to a downward
departure under U.S. Sentencing Guidelines Manual § 5K1.1, p.s. (1997). This
argument fails, because Cole did not contend at sentencing that the government had
breached any obligation under the plea agreement, and the District Court lacked
authority to depart under section 5K1.1 without a government motion. See United
States v. Anzalone, No. 97-2932, slip op. at 2 (8th Cir. Jun. 30, 1998).

      Upon review of the record in accordance with Penson v. Ohio, 488 U.S. 75, 80
(1988), we have found no other nonfrivolous issues. Accordingly, we affirm.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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