UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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