The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4955
ROBERT EARL BROWN, III,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CR-97-75-DWS)
Submitted: October 27, 1998
Decided: November 18, 1998
Before MICHAEL and MOTZ, Circuit Judges, and
HALL, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
John H. Hare, Assistant Federal Public Defender, Columbia, South
Carolina, for Appellant. J. Rene Josey, United States Attorney,
Drenaye L. Houston, Assistant United States Attorney, Columbia,
South 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Unpublished opinions are not binding precedent in this circuit.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:
Robert Earl Brown, III appeals his conviction and the sentence he
received after he pled guilty to six counts of bank robbery.1 The court
sentenced Brown to 157 months' imprisonment and three years of
supervised release. The court also ordered Brown to make restitution
in the amount of $15,663.59. Brown's counsel has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), raising
two issues but stating that, in his view, there are no meritorious issues
for appeal. Brown's counsel provided him with a copy of the Anders
brief and informed him of his right to file a pro se supplemental brief,
but Brown has not filed such a brief on his own behalf.
Brown's counsel first questions whether the district court complied
with the requirements of Fed. R. Crim. P. 11 when accepting Brown's
guilty plea. We accord great deference to the district court's conduct
of the Rule 11 hearing and evaluate alleged Rule 11 violations under
a harmless error standard.2 We will vacate a conviction resulting from
a guilty plea only if the trial court's violation of Rule 11 affected a
defendant's substantial rights.3
Following a de novo review of the entire record, we conclude that
the district court complied with Rule 11 in accepting Brown's guilty
plea by fully discussing the nature and elements of the charge against
Brown, the applicable penalties he faced, including the effect of
supervised release, and ensuring that he consulted with and was satis-
fied with his counsel. The court also addressed the rights Brown for-
feited, the impact of the Sentencing Guidelines, and ascertained that
there was a factual basis for the plea. Finally, the court questioned
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1 See 18 U.S.C. § 2113(a) (1994).
2 See United States v. DeFusco, 949 F.2d 114, 116-17 (4th Cir. 1991).
3 Id. at 117.
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Brown to ensure that his plea was voluntary.4 Accordingly, we find
no violation of Rule 11.
Counsel also disputes whether the district court recognized its
authority during sentencing to grant a downward departure from the
career offender guideline on the basis that such a criminal history cat-
egory over-represented Brown's criminal history. 5 A decision not to
depart is not reviewable, unless the decision was based on the court's
mistaken perception that it lacked the power to depart.6
Here, the court was aware of its authority to depart from the career
offender guidelines but exercised its discretion by refusing to do so.
The court denied defense counsel's motion for departure after consid-
ering counsel's arguments. Because nothing in the record suggests
that the court erroneously believed it lacked the authority to depart,
we decline to review the court's decision.
As required by Anders, we have examined the entire record and
find no meritorious issues for appeal. Accordingly, we affirm
Brown's conviction and 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 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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4 See Fed. R. Crim. P. 11(d).
5 See U.S. Sentencing Guidelines Manual § 4B1.1 (1995).
6 See United States v. Hall, 977 F.2d 861, 863 (4th Cir. 1992).
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