UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4553

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

FLOYD LEWIS MILLER,

Defendant - Appellant.

Appeal from the United States District Court for the Southern 

District of West Virginia, at Huntington. Robert C. Chambers, 

District Judge. (3:11-cr-00164-3)

Submitted: December 28, 2012 Decided: February 1, 2013

Before MOTZ, GREGORY, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Carl E. Hostler, PRIM LAW FIRM, Hurricane, West Virginia, for 

Appellant. Joseph Franklin Adams, OFFICE OF THE UNITED STATES 

ATTORNEY, Huntington, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Floyd Lewis Miller appeals his conviction and ninetyseven month sentence following a guilty plea to conspiracy to 

distribute oxycodone, in violation of 21 U.S.C. § 846 (2006). 

In accordance with Anders v. California, 386 U.S. 738 (1967), 

Miller’s counsel has filed a brief certifying that there are no 

meritorious issues for appeal but questioning the district 

court’s findings regarding the quantity of drugs attributable to 

Miller for sentencing purposes, the court’s refusal to grant 

Miller a departure or variance based on his age and poor health, 

and whether Miller’s sentence is unreasonably disparate when 

compared with the sentences of his co-conspirators. Although 

notified of his right to do so, Miller did not file a 

supplemental pro se brief. Finding no error, we affirm.

We review Miller’s sentence for reasonableness, using 

an abuse of discretion standard. Gall v. United States, 552 

U.S. 38, 51 (2007). We must first review for significant 

procedural errors, including improperly calculating the 

Guidelines range, failing to consider the 18 U.S.C. § 3553(a) 

(2006) factors, sentencing under clearly erroneous facts, or 

failing to adequately explain the sentence. Id. at 51; United 

States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008). Only if we

find a sentence procedurally reasonable may we consider its 

substantive reasonableness. United States v. Carter, 564 F.3d 
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325, 328 (4th Cir. 2009). A sentence within a properlycalculated Guidelines range is presumed reasonable. United 

States v. Powell, 650 F.3d 388, 395 (4th Cir.), cert. denied, 

132 S. Ct. 350 (2011).

We review Miller’s claim that the district court erred 

in relying on the testimony of his co-conspirator when 

determining the quantity of drugs properly attributed to Miller 

for sentencing purposes for clear error. United States v. 

Layton, 564 F.3d 330, 334 (4th Cir. 2009). Further, when, as 

here, a district court’s factual findings at sentencing are 

based on witness testimony, we grant great deference to the 

court’s credibility determinations. Id. Applying these 

standards, and recognizing that the district court adopted a 

relatively conservative finding of the drug quantity 

attributable to Miller, we find no error, clear or otherwise.

Further, we lack authority to review the district 

court’s refusal to grant Miller a departure unless the refusal 

was based on the mistaken belief that it lacked the power to do 

so. United States v. Brewer, 520 F.3d 367, 371 (4th Cir. 2008). 

Here, there is no indication of such a mistake. Moreover, the 

district court cited numerous considerations that counseled for 

a within-Guidelines range sentence and, therefore, did not abuse 

its discretion in refusing Miller’s request for a variance. See

United States v. Hammond, 698 F.3d 679, 681 (8th Cir. 2012) (per 
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curiam) (reviewing refusal to grant variance for abuse of 

discretion).

Similarly, we find no error in the district court’s 

refusal to sentence Miller more leniently than his coconspirators. Although 18 U.S.C. § 3553(a)(6) directs the 

district court to consider disparities in sentencing when 

imposing sentence, a district court has “extremely broad 

discretion when determining the weight to be given each of the 

§ 3553(a) factors.” United States v. Jeffery, 631 F.3d 669, 679 

(4th Cir.), cert. denied, 132 S. Ct. 187 (2011). The district 

court here offered a sufficiently individualized explanation for

Miller’s sentence and did not abuse its discretion. See United 

States v. Moulden, 478 F.3d 652, 658 (4th Cir. 2007) (reasons 

court articulates for a given sentence need not be couched in 

precise terms of § 3553(a) so long as they can be matched to 

factor appropriate for consideration and are clearly based on 

the defendant’s individual circumstances).

In accordance with Anders, we have reviewed the entire 

record and have found no meritorious issues for appeal. We 

therefore affirm Miller’s conviction and sentence. This court 

requires that counsel inform Miller, in writing, of his right to 

petition the Supreme Court of the United States for further 

review. If Miller requests that a petition be filed, but counsel 

believes that such a petition would be frivolous, counsel may 
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move in this court for leave to withdraw from representation. 

Counsel’s motion must state that a copy thereof was served on 

Miller. We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials 

before this court and argument would not aid the decisional 

process. 

AFFIRMED