57 F. 3d 1067 - United States v. Akpala

Christopher Akpala appeals from his resentencing after the district court granted the Government's sentence reduction motion pursuant to Fed.R.Crim.P. Rule 35(b). Akpala's attorney filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), noting two issues but stating that, in his view, there are no meritorious issues for appeal. Akpala filed a supplemental brief claiming, on several grounds, that his sentence should be reduced further.

The district court granted the Government's Rule 35(b) motion for a two-level downward departure to account for Akpala's postconviction assistance. Akpala's new guideline range became fiftyseven to seventy-one months and the district court sentenced him to a term of sixty-four months. Since Akpala's sentencing range was properly calculated, under 18 U.S.C. Sec. 3742(a) (1988), this court has no authority to consider Akpala's or his attorney's contentions on appeal. An appellate court lacks jurisdiction to review a district court's decision in setting a sentence anywhere within a properly calculated sentencing range. United States v. Jones, 18 F.3d 1145, 1151 (4th Cir.1994).

We have examined the entire record in this case in accordance with the requirements of Anders, and find no meritorious issues for appeal. The 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 was served on the client.

The district court's judgment is affirmed. 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 in the decisional process.