                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4341


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

WILLIAM TIMOTHY KEMPH,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (2:06-cr-00159-JBF-JEB-1)


Submitted:    January 29, 2009              Decided:   March 13, 2009


Before MOTZ, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Jon M. Babineau, SAUNDERS BARLOW RIDDICK BABINEAU, PC, Suffolk,
Virginia, for Appellant.     Sherrie Scott Capotosto, Assistant
United States Attorney, Norfolk, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              William        Timothy     Kemph      pleaded      guilty,     without        a

written    plea         agreement,       to       eight    charges      involving        the

possession, distribution and manufacture of methamphetamine, and

one charge of possession of a firearm by a convicted felon.

Kemph was sentenced to 240 months’ imprisonment.                         The court also

ordered forfeiture of property belonging to Kemph, including two

vehicles, a camper/trailer, twenty-two acres of real property

located in Floyd County, Virginia, and a firearm.                              Appellate

counsel has filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), in which he asserts there are no meritorious

issues    for      appeal,    but    questions       whether      the   district        court

erred in determining that Kemp’s real and personal property were

subject    to       forfeiture 1       and    whether      the    court     abused        its

discretion in imposing a sentence above the statutory mandatory

minimum    term         of   ten    years.         Kemph    was     notified       of     the

opportunity to file a pro se supplemental brief, but has failed

to do so. 2     We affirm.

              In    a    criminal    forfeiture       proceeding        pursuant    to     21

U.S.C. § 853 (2006), the Government must establish the elements



     1
       Kemph did not contest forfeiture of a firearm transferred
to an undercover agent as a part of a drug transaction.
     2
         The Government declined to file a responding brief.



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of forfeiture by a preponderance of the evidence.                       United States

v. Tanner, 61 F.3d 231 (4th Cir. 1995).                      Property is subject to

forfeiture under § 853(a)(2) if it is “used, or intended to be

used, in any manner or part, to commit, or to facilitate the

commission of,” a violation of the Uniform Controlled Substances

Act.

               We    conclude      that    the     Government     established      by    a

preponderance of the evidence that Kemph used his vehicles and

his    trailer       to   store    and    deliver     drugs.      The   evidence    also

established that Kemph partially paid for the real property with

drugs    and     stored      drugs    on     the   property.       Accordingly,       the

district court properly concluded that Kemph’s vehicles and real

property      were    used    to     facilitate     methamphetamine      distribution

and were, therefore, subject to forfeiture.

               Turning      to     Kemph’s     sentence,       Kemph    moved   for      a

downward departure based on U.S. Sentencing Guidelines Manual

(USSG)    §    5H1.4      (2006),     allowing      departure      on   the   basis     of

“extraordinary physical impairment,” such as a “seriously infirm

defendant.”           Kemph’s      counsel    cited    his     “significant”    medical

issues, including asbestosis, glaucoma, chronic pulmonary lung

disease,       and    hypertension,          and    his   psychiatric     conditions.

Although the district court granted a downward departure and

imposed a sentence that was fifty-two months below the bottom of

the guideline range, Kemph contends that the court should have

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further departed and sentenced him to ten years, the statutory

mandatory minimum sentence for the conspiracy count.

           We   review    sentences    for       reasonableness,      applying   an

abuse of discretion standard.         Gall v. United States, 128 S. Ct.

586, 597 (2007); see also United States v. Pauley, 511 F.3d 468,

473 (4th Cir. 2007).       When imposing a sentence, a district court

must: (1) properly calculate the guideline range; (2) treat the

guidelines as advisory; (3) consider the factors set out in 18

U.S.C. § 3553(a) (West 2006); and (4) explain its reasons for

selecting a sentence.        Pauley, 511 F.3d at 473.                  A sentence

within the properly calculated sentencing guidelines range is

presumed reasonable.       United States v. Allen, 491 F.3d 178, 193

(4th Cir. 2007); see also Rita v. United States, 127 S. Ct.

2456,   2462-69   (2007)     (upholding          application     of     rebuttable

presumption of correctness of within-guideline sentence).

           In   sentencing    Kemph,        the     district    court     properly

determined that his advisory guideline sentencing range was 292

to 365 months, considered the relevant factors under § 3553(a),

and   granted   Kemph’s    motion     for    a    downward     departure.        The

court’s ruling on Kemph’s departure motion is not reviewable

unless the district court was under the mistaken impression that

it lacked the authority to depart.               United States v. Brewer, 520

F.3d 367, 371 (4th Cir. 2008); see also United States v. Cooper,

437 F.3d 324, 333 (3d Cir. 2006).                Here, as the district court

                                       4
departed from the guideline range, it is obvious that the court

understood its authority to depart and Kemph’s claim regarding

the extent of the departure 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 Kemph’s convictions and sentence.

This court requires that counsel inform Kemph, in writing, of

his right to petition the Supreme Court of the United States for

further review.      If Kemph requests that a petition be filed, but

counsel believes that such a petition would be frivolous, then

counsel    may    move    this   court       for     leave    to   withdraw    from

representation.      Counsel’s motion must state that a copy thereof

was served on Kemph.

            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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