UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                     No. 98-4217
GREGORY STEVEN LATHROP,
a/k/a Greg,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca B. Smith, District Judge.
(CR-96-84)

Submitted: March 30, 1999

Decided: August 10, 1999

Before NIEMEYER and HAMILTON, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

James Stephen Ellenson, Norfolk, Virginia, for Appellant. Fernando
Groene, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk,
Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Gregory Lathrop was found guilty after a jury trial of conspiracy
to distribute methamphetamine, 21 U.S.C.A. § 846 (West 1994), and
two counts of possession of methamphetamine with intent to distrib-
ute, 21 U.S.C.A. § 841 (West 1981 & Supp. 1997). Lathrop was sen-
tenced to 120 months following the district court's departing
downward below the guideline range. The Government successfully
appealed Lathrop's sentence, and this Court vacated his sentence and
remanded this case to the district court solely on the issue of sentenc-
ing. See United States v. Lathrop, No. 96-4904, 1997 WL 639332 (4th
Cir. 1997). Upon resentencing, Lathrop was sentenced to 188 months,
the lowest sentence within his applicable guideline range.

Lathrop's attorney has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967). Counsel states that there are no mer-
itorious grounds for appeal, but raises the following issues: whether
the district court erred in denying Lathrop's motion for the production
of his trial transcripts at government expense and whether the district
court erred by not allowing an appeal of issues beyond Lathrop's
resentencing. Lathrop has filed a supplemental brief echoing the argu-
ments of his attorney. Because our review of the record reveals no
reversible error, we affirm.

After resentencing, Lathrop's appointed counsel, who did not serve
as trial counsel, moved for the production of transcripts of his case at
government expense in order to prepare for a direct appeal. The dis-
trict court denied this motion on the basis of the"mandate" rule,
which forecloses relitigation of issues expressly or impliedly decided
by this Court. See United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993).
When this Court remanded solely on the issue of the district court's
departure below the sentencing guidelines, we impliedly upheld

                    2
Lathrop's conviction. Hence, Lathrop could not relitigate the validity
of his conviction on direct appeal following resentencing.*

Accordingly, we affirm the sentence of the district court. We have
examined the entire record in this case in accordance with the require-
ments of Anders, and find no meritorious issues for appeal. 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 at that time. Coun-
sel's motion must state that a copy thereof was served on the client.
We therefore deny counsel's motion for leave to withdraw at this
time. We dispense with oral argument because the facts and legal con-
tentions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED
_________________________________________________________________
*We have reviewed the transcripts provided by Lathrop at his family's
expense and note that the claim that Lathrop was not advised of his right
to note a direct appeal is properly the subject of a 28 U.S.C. § 2255
motion. Accordingly, our disposition of this appeal is without prejudice
to Lathrop's right to file an appropriate post-conviction motion that
asserts this claim.

                     3
