United States of America v.  Gilberto Candela-Marin

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4784 
GILBERTO CANDELA-MARIN,
Defendant-Appellant. 
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-01-155)
Submitted: April 3, 2002
Decided: April 12, 2002
Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Louis C. Allen, III, Federal Public Defender, John A. Dusenbury, Jr.,
Assistant Federal Public Defender, for Appellant. Anna Mills Wag-
oner, United States Attorney, Arnold L. Husser, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION
PER CURIAM:
Gilberto Candela-Marin appeals his fifty month sentence following
his plea to one count of unlawful entry into the United States after
deportation for an aggravated felony in violation of 8 U.S.C.A.
§ 1326(a) and (b)(2) (West 1996). Candela-Marin’s attorney noted a
timely appeal and filed a brief in accordance with Anders v. Califor-
nia, 386 U.S. 738 (1967), asserting that there are no arguable issues
of merit presented by this appeal. Nonetheless, in his brief, counsel
addressed the possibility that the district court erred in declining to
depart downward from the applicable sentencing guideline range
based upon Candela-Marin’s close ties to and dependence on his fam-
ily. Candela-Martin contends the court should have treated his close
connection with his family as a factor mitigating his unlawful re-
entrance into the United States subsequent to his deportation.
Candela-Marin’s claim lacks merit. A district court’s decision not
to depart is unreviewable unless it is based on a mistaken perception
that the court lacks authority to depart. United States v. Hall, 977 F.2d
861, 863 (4th Cir. 1992). Candela-Marin has not provided any evi-
dence that the district court mistakenly believed it lacked authority to
depart. Therefore, the district court’s decision not to depart is unre-
viewable. Id. Further, he has not identified any extraordinary hard-
ships upon himself or his family that would warrant an inquiry into
a possible downward departure. See United States v. Bell, 974 F.2d
537, 538-39 (1992).
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 representation. Coun-
sel’s motion must state that a copy thereof was served on the client.
We dispense with oral argument, because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
2 UNITED STATES v. CANDELA-MARIN

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