                              UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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