UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 99-4725

DERRICK TYRONE HATFIELD,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-99-68)

Submitted: September 20, 2000

Decided: October 10, 2000

Before WILLIAMS, MOTZ, and TRAXLER, Circuit Judges.

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Affirmed in part and dismissed in part by unpublished per curiam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

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COUNSEL

Bryan Emery Gates, Jr., Winston-Salem, North Carolina, for Appel-
lant. Walter C. Holton, Jr., United States Attorney, Lisa B. Boggs,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Derrick Tyrone Hatfield appeals from his 120-month sentence pur-
suant to his guilty plea for distribution of crack cocaine in violation
of 21 U.S.C. § 841(a)(1) (1994). Hatfield's attorney has filed a brief
in accordance with Anders v. California, 386 U.S. 738 (1967). Coun-
sel states that there are no meritorious grounds for appeal but
addresses the following issues: (1) whether the district court erred in
denying Hatfield's motion for a downward departure; and (2) whether
Hatfield's guilty plea was knowing and voluntary. Although informed
of his right to do so, Hatfield has not filed a pro se supplemental brief.
We affirm in part and dismiss in part.

A district court's decision not to depart from the sentencing guide-
lines is not subject to appellate review unless the refusal to depart is
based on the mistaken belief that the court lacked the authority to
depart. See United States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir.
1990). The record reveals that the district court believed that it had
the authority to depart, but chose not to do so under the circumstances
of the case. We therefore conclude that the denial of the motion for
downward departure is not reviewable.

Hatfield also asserts that his guilty plea was not knowing or volun-
tary. A guilty plea must be "a voluntary and intelligent choice among
the alternative choices of action open to the defendant." North Caro-
lina v. Alford, 400 U.S. 25, 31 (1970); see Boykin v. Alabama, 395
U.S. 238, 242 (1969) (requiring an affirmative showing that a guilty
plea was entered intelligently and voluntarily). Upon reviewing the
transcript of the plea hearing, we find that Hatfield's guilty plea was
knowing and voluntary.

Accordingly, we affirm Hatfield's conviction and sentence, but dis-
miss that portion of the appeal which contests the district court's fail-

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ure to depart.* We have examined the entire record in this case in
accordance with the requirements 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 represen-
tation. 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 IN PART; DISMISSED IN PART
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*The court has considered and rejected the possibility of reversible
error in light of Apprendi v. New Jersey, ___U.S.___ , 68 U.S.L.W. 4576
(U.S. June 26, 2000) (No. 99-478).

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