                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4656


UNITED STATES OF AMERICA,

                      Plaintiff – Appellee,

          v.

CHRISTOPHER LADOUGLAS SMITH,

                      Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:10-cr-00187-WO-1)


Submitted:   December 15, 2011            Decided:   December 19, 2011


Before GREGORY, SHEDD, and DAVIS, Circuit Judges.


Affirmed in part, dismissed in part by unpublished per curiam
opinion.


Todd A. Smith, LAW FIRM OF TODD A. SMITH, Graham, North
Carolina, for Appellant. Clifton Thomas Barrett, Assistant
United   States Attorney, Greensboro, North Carolina,  for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Christopher         LaDouglas             Smith      appeals        from     his

conviction for distribution of cocaine base and his resulting

180-month sentence, entered pursuant to his guilty plea.                                    On

appeal,      counsel      has     filed    a       brief    pursuant       to     Anders    v.

California, 386 U.S. 738 (1967), concluding that there are no

meritorious        issues       for   appeal        but    questioning          whether    the

district court improperly denied Smith’s motion for a downward

departure.         In his pro se supplemental brief, Smith contends

that   the    drug   amount       for     which     he     was    held    responsible      was

incorrect and untimely disclosed.                   We affirm.

              First, Smith asserts that the district court erred in

denying      his   motion       for   a   departure         on     the    basis    that    his

criminal       record       over-represented               his     criminal        activity.

However,     we    lack   the     authority        to     review    a    district    court’s

denial of a downward departure unless the district court did not

recognize its authority to depart.                      United States v. Brewer, 520

F.3d 367, 371 (4th Cir. 2008).                 As it is clear that the district

court understood its discretion in this matter, we dismiss this

portion of the appeal.

              Second,     Smith       contends      that        there    was    insufficient

evidence     supporting         the   calculation          of    drug    quantity    in    the

presentence report (“PSR”) and that it was improper to fail to

disclose the amount prior to his plea.                      However, the quantity in

                                               2
the PSR was based, in large part, on Smith’s own statements to

law enforcement.           At sentencing, Smith admitted these statements

and abandoned any argument to the contrary.                              Moreover, he was

given a variance sentence based, in part, on his cooperation

with law enforcement.              Because Smith did not make an affirmative

showing that the PSR’s calculation was inaccurate, the district

court was free to adopt the findings.                          United States v. Terry,

916 F.2d 157, 162 (4th Cir. 1990).                     Moreover, Smith’s timeliness

claim is meritless as he was informed at his Fed. R. Crim. P. 11

hearing that his Guidelines range had not yet been calculated

and could be different from any estimates by counsel.

               In accordance with Anders, we have reviewed the entire

record    in    the     case,      and    we    find     no    meritorious        issues     for

appeal.     Accordingly, we dismiss Smith’s claim that the district

court     failed      to    depart        and    affirm       Smith’s         conviction     and

sentence.        This      court     requires       that      counsel    inform      Smith    in

writing of his right to petition the Supreme Court of the United

States for further review.                 If Smith requests that a petition be

filed,    but    counsel        believes        that     such     a    petition      would    be

frivolous,      then       counsel       may    motion     this       court    for   leave    to

withdraw from representation.                   Counsel’s motion must state that

a copy thereof was served on Smith.                             We dispense with oral

argument because the facts and legal contentions are adequately



                                                3
presented in the materials before the court and argument would

not aid the decisional process.



                                             AFFIRMED IN PART;
                                             DISMISSED IN PART




                                  4
