            Vacated by Supreme Court, October 3, 2005

                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 03-4177



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

           versus


TIMOTHY EARL MILLS,

                                               Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (CR-02-171)


Argued:   October 26, 2004                 Decided:   January 19, 2005


Before WIDENER, GREGORY, and SHEDD, Circuit Judges.


Dismissed by unpublished per curiam opinion.


ARGUED: King Virgil Cheek, Jr., Greensboro, North Carolina, for
Appellant. Sandra Jane Hairston, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina,
for Appellee. ON BRIEF: Walter T. Johnson, Jr., Greensboro, North
Carolina, for Appellant.     Anna Mills Wagoner, United States
Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

       Timothy Earl Mills brings this appeal challenging the district

court’s refusal to downwardly depart pursuant to United States

Sentencing Guideline § 5H1.4 (“5H1.4") from the sentence it imposed

on November 20, 2002.      Because we have no jurisdiction to review

the district court’s refusal to downwardly depart, we dismiss.



                                    I.

       On May 28, 2002, a grand jury indicted Timothy Earl Mills

(“Mills”) on one count of conspiracy to knowingly, intentionally,

and unlawfully distribute more than one kilogram of heroin and more

than 50 grams of cocaine base (“crack”), one count of heroin

distribution, and one count of “crack” distribution.             At the time

of     his   indictment,   Mills   already    had    two   prior      narcotic

convictions, one from 1987 and one from 1994.

       After initially pleading not guilty, Mills changed his plea to

guilty on the conspiracy charge.         Under the plea agreement, the

Government agreed to not oppose Mills’s motion to dismiss the

distribution counts of the indictment. Importantly, the Government

also agreed to only file an information of prior conviction for the

1994    conviction,   thereby   lessening    the    likelihood   of    a   life

sentence.     As the plea agreement noted, under the conspiracy count

of the indictment, “any person who commits the offense for which he

is pleading guilty to after a prior conviction for a felony drug


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offense         has     become    final   shall      be   sentenced     to   a    term    of

imprisonment which may not be less than twenty years and not more

than life imprisonment.”                  J.A. 12.        Further, “any person who

commits the offense for which he is pleading guilty after two or

more prior convictions for a felony drug offense have become final,

shall be sentenced to a mandatory term of life imprisonment without

release, and a fine not to exceed $8,000,000.00, or both.”                               Id.

Finally, the Government agreed to recommend a reduction of the

offense         level    by    two   levels    contingent      upon   Mills      accepting

responsibility for his criminal conduct in a timely and sincere

manner.1 Subsequently, the Government filed a 5K1.1 motion seeking

a   35%     downward          departure   in   Mills’s       sentence   based      on    his

cooperation with the Government.

       During his sentencing hearing, Mills argued that his medical

health should be factored into the calculation of his sentence. At

the time he changed his plea, Mills’s counsel notified the district

court that Mills had been HIV positive since 1996 and required a

“cocktail” of medicine to prevent his condition from worsening into

AIDS.      At the plea agreement hearing, the district court directed

that       he    receive         appropriate       medical    attention      during      his

incarceration to ensure that his situation would not degenerate

into something more serious. In spite of these instructions, Mills


       1
      In the event that such a reduction was granted and the
offense level remained above 16, the government further agreed to
request an additional one level decrease.

                                               3
avers that he spent two months in a correctional facility in

Caldwell County, North Carolina receiving none of the care ordered

by the district court.2        After notifying the U.S. Attorney of the

situation,    Mills     was   transferred    to   Forsyth   County    where    he

received the necessary medical attention. However, Mills’s medical

condition, after the alleged failure of the prison system to

provide him with appropriate medical attention, had advanced to

full-blown AIDS.      Mills requested that the district court consider

both the fact that given his medical condition a lengthy sentence

could effectively be a death sentence, and the fact that his

medical     condition    worsened    on     account   of    indifference      and

negligence, when setting forth his sentence.

     On this issue, the district court determined that it did not

have enough information in the record regarding Mills’s medical

care over the time period in question to determine whether proper

medical care (as per the court’s directive) was given.               Therefore,

the district court sentenced Mills without consideration of the

medical issue, and noted that he would review the sentence when he

had the necessary documents related to the medical care Mills

received.

     The district court ultimately found that Mills had indeed

accepted responsibility for his criminal conduct.               After noting


     2
       The district court did not actually order a particular
course of treatment, but instead ordered that Mills’s condition be
ascertained and that appropriate care be given.

                                      4
that 240 months is the mandatory minimum for the conduct to which

Mills pled guilty, the district court sentenced Mills as follows:

     Ordinarily, the Court would be sentencing Mr. Mills to a
     period of 240 months imprisonment. However, in view of
     the 5K1.1 which has been filed here, the Court has
     reviewed that, and has heard from counsel, and has
     decided that the 5K1 is appropriate, and under these
     circumstances the Court removes Mr. Mills from his
     ordinary guideline range and imposes the following
     sentence:   It is adjudged that Mr. Mills shall be
     committed to the Bureau of Prisons for a period of 150
     months.


J.A. 51.

     Following   his   sentencing   hearing,   Mills   made   a   motion

requesting that the court downwardly depart from the sentence

imposed pursuant to § 5H1.4.   Specifically, § 5H1.4 provides that

an “extraordinary physical impairment may be a reason to depart.”

U.S. Sentencing Guidelines Manual § 5H1.4 (2003).        The district

court denied this motion, finding that Mills’s argument that “the

treatment afforded Defendant before being transferred to a facility

of the Bureau of Prisons was so inadequate as to constitute cruel

and unusual punishment” was not sufficiently supported by the

facts, and therefore refused to downwardly depart.      J.A. 99.

     From this decision, Mills brings this appeal.




                                    5
                                     II.

     Mills contends that the district court erred in not granting

his motion for a downward departure under § 5H1.4.3       However, the

“only circumstance in which review [of a district court's refusal

to depart] is available is when the district court mistakenly

believed that it lacked the authority to depart.” United States v.

Edwards, 188 F.3d 230, 238 (4th Cir. 1999); see also United States

v. Minutoli, 374 F.3d 236, 239 (3rd Cir. 2004) (“It is well-

established in this Court that we lack jurisdiction to review the

merits of a district court's discretionary decision to refuse a

downward   departure   under   the    Sentencing   Guidelines   once   we

determine that the district court properly understood its authority

to grant a departure.”); U.S. v. McBride, 362 F.3d 360, 376 (6th


     3
       Mills also contends that the district court promised him a
hearing on the issue of a § 5H1.4 departure and that no such
hearing was ever held. Specifically, at the November 20, 2002,
sentencing hearing the district court stated:

     “What I’m saying is, I don’t think we’re going to get any
     record any more than we have. I think we’re going to get
     a hearing of what has happened and you will be notified
     of that. I will give you an opportunity to be heard, Mr.
     Johnson.”

J.A. 52.     On December 1, 2002, Mills filed a motion for
reconsideration of that sentence under § 5H1.4, which was later
denied by the district court.

     Mills neglects the filing of this motion when contending that
he was denied the opportunity to be heard on this issue.        The
motion in question set forth in full the reasons why Mills believed
that he was entitled to a departure under § 5H1.4. As such, we
find that Mills was heard on this issue and determine that his
deprivation claim has no merit.

                                      6
Cir. 2004) (recognizing the general rule that “a court's failure to

... grant a downward departure is not reviewable”).

     Therefore, the only determination before this court is whether

or not the district court mistakenly believed that it lacked the

authority to depart.       Mills makes no argument that the district

court was mistakenly unaware of its authority to downwardly depart

and the record does not support any such contention.            In the order

denying Mills’s motion for reconsideration, the district court

explicitly stated that the motion was denied because the allegation

of cruel and unusual punishment was “not sufficiently supported by

the facts.”   (J.A. 98-99).       In other words, the district court

“considered and rejected the factual basis for downward departure,

concluding that [Mills] had not ‘met the burden’ for departure.”

U.S. v. Edwards, 188 F.3d 230, 238-39 (4th Cir. 1999).

     As   such,   review    of   the       district   court’s   decision   is

unavailable and the appeal is dismissed.

                                                                   DISMISSED




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