                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4414



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


KENNETH WAYNE ODOM, a/k/a Kenny,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(CR-04-559)


Submitted: December 14, 2006              Decided:   December 18, 2006


Before MICHAEL, GREGORY, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Henry M. Anderson, Jr., ANDERSON LAW FIRM, PA, Florence, South
Carolina, for Appellant. Rose Mary Parham, Assistant United States
Attorney, Florence, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Kenneth Wayne Odom appeals his conviction and 120-month

sentence pursuant to his guilty pleas to one count of conspiracy to

possess with intent to distribute marijuana and five grams or more

of   cocaine   base,   in    violation    of    21   U.S.C.   §§    841(a)(1),

841(b)(1)(A)    (2000),     and   one   count   of   using    a    firearm   in

furtherance of a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c)(1)(A) (2000).

           Counsel for Odom has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (2000), in which he states there are no

meritorious issues for appeal, but presenting one issue for our

review.   Counsel suggests the district court erred in denying

Odom’s motion for a downward departure due to Odom’s extraordinary

physical condition.    See U.S. Sentencing Guidelines Manual § 5H1.4

(2003).

           A district court’s decision not to depart from the

sentencing guidelines is not subject to appellate review unless the

refusal to depart is based on the mistaken belief that the court

lacked jurisdiction to depart.          United States v. Quinn, 359 F.3d

666, 682 (4th Cir. 2004) (citing United States v. Bayerle, 898 F.2d

28, 30-31 (4th Cir. 1990)); see also United States v. Cooper, 437

F.3d 324, 333 (3d Cir. 2006) (collecting cases adopting this rule

after United States v. Booker, 543 U.S. 220 (2005)).                Here, the

district court recognized its authority to depart but found, under


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the circumstances of Odom’s case, that departure was not warranted.

Thus, this claim is not subject to appellate review.                  Quinn, 359

F.3d at 682.

            In accordance with Anders, we have reviewed the entire

record    for   any    meritorious      issues      and     have    found     none.

Accordingly, we affirm Odom’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 his

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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