                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-4165



UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

          v.


MONTAVIS ANTWANN MCSWAIN,

                  Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:05-cr-00390-RJC-8)


Submitted:     July 31, 2008                 Decided:   August 7, 2008


Before NIEMEYER, TRAXLER, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James S. Weidner, Jr., LAW OFFICE OF JAMES S. WEIDNER, JR.,
Charlotte, North Carolina, for Appellant. Gretchen C.F. Shappert,
United States Attorney, Charlotte, North Carolina; Amy Elizabeth
Ray, Assistant United States Attorney, Asheville, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Montavis Antwann McSwain appeals from his conviction and

120-month sentence imposed following his guilty plea to conspiracy

to possess with intent to distribute cocaine and cocaine base and

possession with intent to distribute cocaine base.                   McSwain’s

attorney filed a brief pursuant to Anders v. California, 386 U.S.

738 (1967), addressing the constitutionality of 21 U.S.C. § 841

(West     1999 & Supp. 2008), and the reasonableness of the sentence,

but stating that there was no merit to the appeal.               McSwain filed

a pro se brief asserting that his sentence was enhanced based on an

uncounseled juvenile conviction and requesting a reduction of his

sentence based on a recent amendment to the Sentencing Guidelines.

Our     review   of   the    record      discloses   no     reversible   error;

accordingly, we affirm McSwain’s conviction and sentence.

             Initially,     we   note    that   McSwain’s   challenge    to   the

constitutionality of § 841 has been rejected by this court.                   See

United States v. Fisher, 58 F.3d 96, 99-100 (4th Cir. 1995); United

States v. D’Anjou, 16 F.3d 604, 612 (4th Cir. 1994).             To the extent

that McSwain seeks to have this court reconsider its decisions, “a

panel of this court cannot overrule, explicitly or implicitly, the

precedent set by a prior panel of this court.                Only the Supreme

Court or this court sitting en banc can do that.”* Scotts Co. v.


      *
      The recent Supreme Court decision Kimbrough v. United States,
128 S. Ct. 558 (2007) (holding that district court has discretion
to find “that the crack/powder disparity yields a sentence ‘greater

                                        - 2 -
United Indus. Corp., 315 F.3d 264, 271-72 n.2 (4th Cir. 2002)

(internal quotation marks and citations omitted).

             Appellate courts review sentences imposed by district

courts   for       reasonableness,     applying    an     abuse    of   discretion

standard.     Gall v. United States, 128 S. Ct. 586, 597 (2007); see

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

sentencing     a    defendant,   a   district     court    must:    (1)   properly

calculate    the     guideline   range;    (2)     treat    the    guidelines     as

advisory; (3) consider the factors set out in 18 U.S.C.A. § 3553(a)

(West 2000 & Supp. 2008); and (4) explain its reasons for selecting

a sentence.        Pauley, 511 F.3d at 473.       We presume that a sentence

within the properly calculated sentencing guidelines range is

reasonable.        United States v. Allen, 491 F.3d 178, 193 (4th Cir.

2007); see Rita v. United States, 127 S. Ct. 2456, 2462-69 (2007)

(upholding application of rebuttable presumption of correctness of

within guideline sentence).

             The    district   court    followed    the    necessary      steps   in

sentencing McSwain, and we find no abuse of discretion in the 120-

month sentence imposed.          McSwain’s challenge to the use of a

juvenile conviction to enhance his sentence is meritless.                  McSwain

was tried as an adult on that offense and he was represented by

counsel.     Accordingly, we affirm McSwain’s sentence.



than necessary’ to achieve § 3553(a)’s purpose, even in a mine run
case”), did not find § 841's penalty provisions unconstitutional.

                                       - 3 -
          McSwain also seeks a reduction in his sentence pursuant

to Amendment 706 to the sentencing guidelines, which lowered the

base offense level for drug offenses involving crack cocaine.   See

U.S. Sentencing Guidelines Manual (USSG) § 2D1.1 (2007); USSG App.

C. Amend. 706.    It is for the district court to first assess

whether and to what extent a criminal defendant’s sentence may be

affected by Amendment 706, either sua sponte or by motion pursuant

to 28 U.S.C.A. § 3582(c)(2) (West 2000 & Supp. 2008).        United

States v. Brewer, 520 F.3d 367, 373 (4th Cir. 2008).

          As required by Anders, we have reviewed the entire record

and have found no meritorious issues for appeal.       We therefore

affirm McSwain’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 renew his

motion for leave to withdraw from 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




                              - 4 -
