                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-4443


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

ISAAC JACOB DEBERRY,

                  Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  Joseph R. Goodwin,
Chief District Judge. (2:07-cr-00165-1)


Submitted:    March 17, 2009                 Decided:   April 1, 2009


Before GREGORY, DUNCAN, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Troy N. Giatras, THE GIATRAS LAW FIRM, PLLC, Charleston, West
Virginia, for Appellant. Charles T. Miller, United States
Attorney,   Monica L. Dillon, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Isaac Jacob DeBerry appeals his sentence of 103 months

of imprisonment after a guilty plea to distribution of cocaine

base, in violation of 21 U.S.C. § 841(a)(1) (2006).                              DeBerry

claims that the district court erred in including two instances

of uncharged criminal conduct as relevant conduct for sentencing

purposes.    Finding no error, we affirm.

            Appellate       courts     review      a    sentence       imposed    by     a

district    court     for     reasonableness,           applying       an   abuse       of

discretion standard.          Gall v. United States, 128 S. Ct. 586, 597

(2007); United States v. Pauley, 511 F.3d 468, 473 (4th Cir.

2007).     The appellate court must first ensure that the district

court    committed    no    “significant”         procedural     errors,      such      as

“‘failing     to     calculate       (or        improperly      calculating)           the

[g]uidelines       range,   treating       the    [g]uidelines         as   mandatory,

failing to consider the [18 U.S.C.] § 3553(a) [(2006)] factors,

selecting     a    sentence    based    on       clearly    erroneous       facts,      or

failing to adequately explain the chosen sentence . . . .’”

Pauley, 511 F.3d at 473 (quoting Gall, 128 S. Ct. at 597).

            If there are no procedural errors in the sentence, the

appellate court then considers the substantive reasonableness of

the     sentence.       Gall,     128      S.     Ct.      at   597.     “Substantive

reasonableness review entails taking into account the ‘totality

of the circumstances, including the extent of any variance from

                                           2
the   [g]uidelines       range.’”         Pauley,         511   F.3d      at    473     (quoting

Gall, 128 S. Ct. at 597).                 Moreover, the appellate court “must

give due deference to the district court’s decision that the

§ 3553(a) factors . . . justify the extent of the variance.”

Id. at 473-74.

            The     challenged        relevant            conduct      did        not     affect

DeBerry’s       sentencing      range       under         the      advisory       guidelines.

DeBerry    was    sentenced      as   a    career         offender.         The      applicable

advisory    guidelines       range      was     therefore       based       upon      DeBerry’s

status as a career offender and the statutory maximum for the

crime to which he pleaded guilty.                         Thus, the inclusion of the

challenged incidents as relevant conduct had no effect on his

resultant       guidelines      range      or       the     sentence      imposed       by   the

district court.

            We     therefore      affirm        the       judgment     of      the      district

court.     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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