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    United States v. Lilly, 4th Cir. (2009)

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    The United States Court of Appeals for the Fourth Circuit affirmed Jerry Lilly's conviction and sentence for conspiracy to distribute oxycodone. Lilly pled guilty pursuant to a plea agreement and was sentenced to 84 months in a medical facility. Lilly's counsel argued the district court erred in denying a downward departure for Lilly's heart condition, but the appellate court found the district court understood its authority to depart downward and properly determined a departure was not warranted based on the evidence presented. The appellate court conducted an independent review and found no issues meriting reversal.

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    United States v. Lilly, 4th Cir. (2009)

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    The United States Court of Appeals for the Fourth Circuit affirmed Jerry Lilly's conviction and sentence for conspiracy to distribute oxycodone. Lilly pled guilty pursuant to a plea agreement and was sentenced to 84 months in a medical facility. Lilly's counsel argued the district court erred in denying a downward departure for Lilly's heart condition, but the appellate court found the district court understood its authority to depart downward and properly determined a departure was not warranted based on the evidence presented. The appellate court conducted an independent review and found no issues meriting reversal.

    Original Description:

    Filed: 2009-12-01 Precedential Status: Non-Precedential Docket: 08-4993

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    The United States Court of Appeals for the Fourth Circuit affirmed Jerry Lilly's conviction and sentence for conspiracy to distribute oxycodone. Lilly pled guilty pursuant to a plea agreement and was sentenced to 84 months in a medical facility. Lilly's counsel argued the district court erred in denying a downward departure for Lilly's heart condition, but the appellate court found the district court understood its authority to depart downward and properly determined a departure was not warranted based on the evidence presented. The appellate court conducted an independent review and found no issues meriting reversal.

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    18 views3 pages

    United States v. Lilly, 4th Cir. (2009)

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    Scribd Government Docs
    The United States Court of Appeals for the Fourth Circuit affirmed Jerry Lilly's conviction and sentence for conspiracy to distribute oxycodone. Lilly pled guilty pursuant to a plea agreement and was sentenced to 84 months in a medical facility. Lilly's counsel argued the district court erred in denying a downward departure for Lilly's heart condition, but the appellate court found the district court understood its authority to depart downward and properly determined a departure was not warranted based on the evidence presented. The appellate court conducted an independent review and found no issues meriting reversal.

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    of 3

    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

    imprisonment in a medical facility.

    to

    eighty-four

    months

    Lillys 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 Lillys 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

    reply

    brief.

    Finding no error, we affirm.


    Lillys counsel questions the district courts refusal
    to grant a downward departure based on Lillys advanced heart
    condition.

    See USSG 5H1.4 (authorizing departure based on

    extraordinary

    physical

    impairment).

    district

    courts

    refusal to depart from the applicable guidelines range does not


    provide

    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 Lillys


    written and oral arguments in support of a departure.

    In fact,

    in this regard, the district court heard extensive testimony


    2

    from Lillys cardiologist.


    understood

    its

    authority

    It is thus apparent that the court


    to

    depart

    downward departure was not warranted.

    but

    determined

    that

    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 Lillys 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

    representation.

    in

    and

    materials

    legal
    before

    court

    for

    leave

    to

    withdraw

    from

    Counsels motion must state that a copy thereof

    was served on Lilly.


    facts

    this

    We dispense with oral argument because the

    contentions
    the

    court

    are

    adequately

    and

    argument

    presented

    would

    not

    in

    the

    aid

    the

    decisional process.
    AFFIRMED

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