UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 99-4161

GABRIEL AGUILERA-GUTIERREZ,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
Frank W. Bullock, Jr., Chief District Judge.
(CR-98-256)

Submitted: September 30, 1999

Decided: October 8, 1999

Before NIEMEYER, WILLIAMS, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Walter C. Holton, Jr., United States
Attorney, Arnold L. Husser, 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Unpublished opinions are not binding precedent in this circuit.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:

Gabriel Aguilera-Gutierrez pled guilty to illegal re-entry by a
deported alien, see 8 U.S.C.A. § 1326(a), (b)(2) (West 1999), and
possession of a firearm by an illegal alien, see 18 U.S.C.A.
§§ 922(g)(5), 924(a)(2) (West Supp. 1999). We affirm the conviction
and sentence.

Aguilera-Gutierrez's attorney has filed a brief pursuant to Anders
v. California, 386 U.S. 738 (1967), raising as a potentially meritori-
ous issue the district court's failure to depart below the guideline
range pursuant to U.S. Sentencing Guidelines Manual § 2L1.2, com-
ment. (n.5) (1998). Application Note 5 suggests that a downward
departure may be warranted when the defendant received an enhance-
ment for having a prior conviction for an aggravated offense, but has
only one such conviction, the prior offense was neither a crime of vio-
lence nor a firearms offense, and the prior sentence did not exceed
one year. However, the district court's decision not to depart is not
reviewable on appeal. See United States v. Bayerle, 898 F.2d 28, 31
(4th Cir. 1990).

Pursuant to Anders, this court has reviewed the record for revers-
ible error and found none. We therefore affirm the conviction and
sentence. We deny counsel's motion to withdraw. 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, then counsel may again move 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 contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

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