UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4373
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GEORGE LEWIS ANDERSON, a/k/a Link,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(CR-02-451)
Submitted: January 11, 2006 Decided: May 26, 2006
Before MICHAEL, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
D. Craig Brown, Florence, South Carolina, for Appellant. Arthur
Bradley Parham, OFFICE OF THE UNITED STATES ATTORNEY, Florence,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
George Lewis Anderson pled guilty to one count of
conspiracy to possess with intent to distribute and distribution of
fifty grams or more of cocaine base and five kilograms or more of
cocaine, in violation of 21 U.S.C. §§ 841(a)(1); 846 (2000).
Anderson was sentenced to a 135-month term of imprisonment. We
affirm the conviction and sentence.
Because the district court determined Anderson was
responsible for 1.67 kilograms of cocaine base, Anderson was
assigned a base offense level of thirty-eight. See U.S. Sentencing
Guidelines Manual § 2D1.1(c)(1) (2003). The district court applied
a three-level adjustment for acceptance of responsibility, thereby
giving Anderson an adjusted offense level of thirty-five. An
additional two-level adjustment was applied because the Government
stipulated that Anderson had satisfied the criteria set forth in
§ 5C1.2(a). See USSG § 2D1.1(b)(6). Anderson was assessed one
criminal history point, which placed him in criminal history
category I. The resulting advisory guideline range was 135 to 168
months.
As Anderson did not object, the district court adopted
the findings in the Presentence Investigation Report. Anderson’s
counsel moved the district court for a downward departure pursuant
to § 5H1.4, alleging Anderson’s renal disease and congestive heart
failure constituted “extraordinary physical impairment.” The
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district court, noting it had “the authority to exercise [its]
discretion . . . to decide to depart,” determined Anderson’s
physical impairments were “[s]erious [and] significant, but not
extraordinary.” Consequently, the court denied the motion for
downward departure.
Similarly, counsel moved for a variance pursuant to 18
U.S.C. § 3553(a) (2000). In support, counsel once again urged
consideration of Anderson’s physical condition as well as his de
minimis criminal past. The district court denied the motion for
variance based on “the nature and circumstances of the offense.”
In response, Anderson’s counsel requested that the court sentence
Anderson “at the very bottom of [the guideline] range in light of
his condition . . . .” The district court, noting it was persuaded
by counsel’s argument, sentenced Anderson to imprisonment for 135
months. The court concluded that “[i]t’s not often that for this
kind of conduct [it would] sentence at the bottom of the
guidelines. But[,] . . . under all of the circumstances[,] this is
one of the cases where the sentence at the bottom of the guidelines
would be appropriate.”
On appeal, counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting that there were no
meritorious grounds for appeal, but raising the issue of whether
the district court erred in its denial of Anderson’s motions for
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downward departure and variance. Although Anderson was informed of
his right to file a pro se supplemental brief, he did not do so.
“A district court’s decision not to depart from the
Sentencing Guidelines is not reviewable unless the court mistakenly
believed it lacked authority to depart.” United States v. Carr,
271 F.3d 172, 176 (4th Cir. 2001). The district court
unequivocally acknowledged its authority to exercise its discretion
to depart. Before making its decision, the district court noted it
had reviewed Anderson’s medical records, the deposition testimony
of his treating physicians, and heard from the Bureau of Prisons
regarding the availability of treatment. Though the district court
acknowledged Anderson’s condition was “serious” and “significant,”
it determined it was not of such a level as to warrant either a
departure or a variance. Accordingly, we conclude the district
court’s decisions to not depart or vary are not subject to
appellate review.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. Accordingly we affirm Anderson’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 counsel believes that such a petition would be frivolous, then
counsel may move this court for leave to withdraw from
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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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