                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-4576



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


BRANDON SCOTT MORTON,

                                              Defendant - Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Anderson. Margaret B. Seymour, District Judge.
(CR-02-871)


Submitted: February 12, 2004              Decided:   February 20, 2004


Before LUTTIG, WILLIAMS, and MOTZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James  Barlow   Loggins, Assistant   Federal  Public  Defender,
Greenville, South Carolina, for Appellant. Isaac Louis Johnson,
Jr., OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Brandon Morton appeals his conviction pursuant to a

guilty plea and 151-month sentence for two counts of bank robbery,

in violation of 18 U.S.C. § 2113(a) (2000).      Counsel for Morton has

filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), in which he states there are no meritorious grounds for

appeal, but presenting one issue for this court’s review. Although

notified of his right to file a supplemental brief, Morton has not

done so.    Finding no error, we affirm.

            Counsel suggests that the district court erred in failing

to   depart   downward   from   Morton’s    sentencing   range   for   his

substantial assistance to the Government.         However, in the plea

agreement, the Government retained discretion over whether to make

a substantial assistance motion; it was not obligated to so move.

See United States v. Snow, 234 F.3d 187, 190 (4th Cir. 2000).

Moreover, the denial of a request for a downward departure is not

reviewable on appeal unless the district court mistakenly believed

it lacked the authority to depart.        United States v. Bayerle, 898

F.2d 28, 30 (4th Cir. 1990).       The record indicates the district

court understood its authority to depart, but that it chose not to

depart.    Therefore, Morton’s claim is unreviewable on appeal.

            As required by Anders, we have reviewed the entire record

and have found no meritorious issues for appeal.         Accordingly, we

affirm Morton’s conviction and sentence.        The court requires that


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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.   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 adequately presented in the materials before the court and

argument would not aid the decisional process.



                                                          AFFIRMED




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