UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 96-4082

JEFFREY LYNN MYERS,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, Chief District Judge.
(CR-90-10-ST-V)

Submitted: May 29, 1997

Decided: June 23, 1997

Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

G. Alan DuBois, Assistant Federal Public Defender, Raleigh, North
Carolina, for Appellant. Mark T. Calloway, United States Attorney,
H. Thomas Church, Assistant 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Unpublished opinions are not binding precedent in this circuit.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:

Jeffrey L. Myers appeals from his sentence imposed pursuant to a
retroactive amendment to the United States Sentencing Guidelines.
We affirm.

Myers' attorney filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), arguing that the district court erred in refusing to
depart downward on three grounds. First, the attorney argues that
Myers' classification as a career offender overstates the seriousness
of his criminal history and thus warrants a departure under United
States Sentencing Commission, Guidelines Manual , § 4A1.3 (Nov.
1995). Next, he argues that this classification overstates the serious-
ness of the offense of conviction. Finally, he argues that Myers'
extraordinary post-conviction rehabilitative efforts and achievements
merit a downward departure.

A district court's discretionary decision not to depart is not review-
able unless it is based on a mistaken belief that the court lacked the
legal authority to depart. See United States v. Bayerle, 898 F.2d 28,
31 (4th Cir. 1990). Looking to the first of Myers' proffered bases for
departure, we note that neither in his written objections nor during the
sentencing hearing did Myers provide any factual argument as to why
classification as a career offender overstates the seriousness of Myers'
criminal history. Instead, the objections state only that should the
court find the classification appropriate, it had the authority to depart
downward. Because nothing in the record suggests that the district
court was unaware of this authority, we do not review this claim.

Looking to the second of Myers' proffered bases, the district court
expressed no uncertainty as to its departure authority. Instead, it
clearly stated that, in its opinion, the facts of Myers' case did not war-
rant a departure. Accordingly, because its refusal to depart was not
based upon an erroneous perception regarding departure authority, we
do not review this claim.

Finally, addressing Myers' third claim, the sentencing court stated
that it was not aware of any law that would recognize such a depar-

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ture, but noted that even if it were to make one, it did not believe that
a departure was warranted in Myers' case. Accordingly, even though
this Court has subsequently held that post-conviction rehabilitation
may constitute a sufficient basis for downward departure, United
States v. Brock, 108 F.3d 31 (4th Cir. 1997), the sentencing court's
indication that it did not believe the facts warranted departure renders
its decision unreviewable.

In accordance with Anders, we have examined the entire record of
Myers' resentencing and find no reversible error. We therefore affirm
Myers' sentence. 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.
Counsel's motion must state that a copy thereof was served on the cli-
ent.

We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the record and briefs, and oral argu-
ment would not aid the decisional process.

AFFIRMED

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