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UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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