UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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