United States v. Lilly , 354 F. App'x 800 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4993
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JERRY LILLY,
Defendant – Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Thomas E. Johnston,
District Judge. (5:07-cr-00137-2)
Submitted: November 19, 2009 Decided: December 1, 2009
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mark L. French, CRISWELL & FRENCH, PLLC, Charleston, West
Virginia, for Appellant. Miller A. Bushong, III, OFFICE OF THE
UNITED STATES ATTORNEY, Beckley, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jerry Lilly pled guilty, pursuant to a plea agreement,
to conspiracy to distribute oxycodone, in violation of 21 U.S.C.
§ 846 (2006), and was sentenced to eighty-four months’
imprisonment in a medical facility. Lilly’s counsel has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
stating that in his view, there are no meritorious issues for
appeal, but questioning whether the district court erred in
denying Lilly’s motion for a downward departure pursuant to U.S.
Sentencing Guidelines Manual § 5H1.4 (2007). Lilly was informed
of his right to file a pro se supplemental brief, but he has not
done so. The Government declined to file a reply brief.
Finding no error, we affirm.
Lilly’s counsel questions the district court’s refusal
to grant a downward departure based on Lilly’s advanced heart
condition. See USSG § 5H1.4 (authorizing departure based on
“extraordinary physical impairment”). A district court’s
refusal to depart from the applicable guidelines range does not
provide a basis for appeal under 18 U.S.C. § 3742 (2006),
“unless the court failed to understand its authority to do so.”
United States v. Brewer, 520 F.3d 367, 371 (4th Cir. 2008). The
record confirms the district court thoroughly considered Lilly’s
written and oral arguments in support of a departure. In fact,
in this regard, the district court heard extensive testimony
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from Lilly’s cardiologist. It is thus apparent that the court
understood its authority to depart but determined that a
downward departure was not warranted. Accordingly, this claim
is not cognizable on appeal.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Lilly’s conviction and sentence.
This court requires that counsel inform Lilly, in writing, of
his right to petition the Supreme Court of the United States for
further review. If Lilly 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 Lilly. 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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