                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-4905


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

MICHAEL B. MARTISKO,

                  Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg.    Irene M. Keeley,
District Judge. (1:07-cr-00104-IMK-3)


Submitted:    April 28, 2009                 Decided:    May 20, 2009


Before TRAXLER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Kumaraswamy   Sivakumaran, STERLING  LEGAL            SERVICES   PLLC,
Clarksburg, West Virginia, for Appellant.             Zelda Elizabeth
Wesley, Assistant United States Attorney,            Clarksburg, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Michael B. Martisko timely appeals from the twenty-

four month sentence imposed following his guilty plea to one

count   of   aiding    and    abetting        in   the   distribution      of   cocaine

hydrochloride, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C)

(2006) and 18 U.S.C. § 2 (2006).                    Martisko’s counsel filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967),

asserting that there are no meritorious grounds for appeal, but

questioning      whether     the   district        court   complied   with      Federal

Rule of Criminal Procedure 11 (2009) (“Rule 11”) in accepting

Martisko’s    guilty       plea    and    whether        Martisko’s   sentence       was

reasonable.       Martisko has not filed a pro se brief, though he

was   informed    of   his    right      to   do   so.      Finding   no    error,    we

affirm.

             Martisko first asks this court to review whether the

district court complied with Rule 11 in accepting his guilty

plea.     Because Martisko did not move to withdraw his guilty plea

in the district court or raise any objections to the Rule 11

plea colloquy, we review the adequacy of the plea hearing for

plain error.       United States v. Martinez, 277 F.3d 517, 524-27

(4th Cir. 2002); United States v. General, 278 F.3d 389, 393

(4th Cir. 2002).       To demonstrate plain error, Martisko must show

that “error occurred, that the error was plain, and that the



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error affected his substantial rights.”                      General, 278 F.3d at

393 (internal quotation marks and citation omitted).

           Our review of the plea hearing transcript reveals that

the   district    court       substantially           complied     with   Rule    11   in

accepting Martisko’s guilty plea.                 Martisko’s plea was knowing,

voluntary, and intelligently made, with full understanding of

the   consequences      of    his    plea,      and    the   district     court     found

sufficient factual basis for the plea.                       See Fed. R. Crim. P.

11(b).     Although       the       district     court       did   not    explain      its

authority to order restitution or make any mention of forfeiture

as required by Rule 11(b)(1)(J)-(K), these omissions did not

affect Martisko’s substantial rights because the court did not

ultimately order restitution and forfeiture is not applicable.

Accordingly, we find no plain error.

           Martisko          also    asks       this     court      to    review       the

reasonableness     of        his    sentence.            Consistent       with    United

States v. Booker, 543 U.S. 220 (2005), the district court is

required to follow a multi-step process at sentencing.                            First,

it must calculate the proper sentencing range prescribed by the

Guidelines.      Gall v. United States, 128 S. Ct. 586, 596 (2007);

see also United States v. Abu Ali, 528 F.3d 210, 260 (4th Cir.

2008).   The court must then consider that range in light of the

parties’ arguments regarding the appropriate sentence and the

factors set out in 18 U.S.C. § 3553(a) (2006) before imposing

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sentence.        Gall, 128 S. Ct. at 596; see also Abu Ali, 528 F.3d

at 260.

            This court reviews the district court’s sentence for

abuse of discretion.              Gall, 128 S. Ct. at 591.                  First, we must

ensure     the    district        court       did    not    commit      any     “significant

procedural error,” such as failing to consider the 18 U.S.C.

§ 3553(a) factors or failing to adequately explain the sentence.

Id.   at    597.        Second,          we     must       consider       the      substantive

reasonableness of the sentence, taking into account the totality

of the circumstances.              Id.        If the sentence imposed is within

the      appropriate       Guidelines            range,       it       is       presumptively

reasonable.        United States v. Go, 517 F.3d 216, 218 (4th Cir.

2008).     The presumption may be rebutted by a showing “that the

sentence is unreasonable when measured against the § 3553(a)

factors.”        United States v. Montes-Pineda, 445 F.3d 375, 379

(4th Cir. 2006) (internal quotation marks and citation omitted).

             Our    review    of     the       record      reveals     no     procedural    or

substantive        error     in     the       district       court’s        imposition      of

Martisko’s sentence.          The district court properly calculated the

appropriate Guidelines range of twenty-four to thirty months and

considered       the   Guidelines          as       advisory.          Additionally,       the

district    court      considered         the       18   U.S.C.    §      3553(a)    factors,

Martisko’s       allocution,        and       the    arguments       of     both    attorneys

before imposing Martisko’s sentence.                         The district court also

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provided a lengthy explanation of the reasons for its sentence,

citing    Martisko’s     long     criminal      history,    the     nature    of    the

current offense, and the need to protect the public.                       Moreover,

we   view    Martisko’s        within-Guidelines      sentence      on   appeal      as

presumptively      reasonable      and    Martisko    has     not   rebutted       that

presumption.      Thus, we conclude that the district court did not

abuse its discretion in sentencing Martisko and the sentence is

reasonable.

             In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal.

We therefore affirm Martisko’s conviction and sentence.                            This

court requires that counsel inform Martisko, in writing, of his

right to petition the Supreme Court of the United States for

further review.        If Martisko requests that a petition be filed,

but counsel believes that such a petition would be frivolous,

counsel     may   move   in     this    court   for   leave    to   withdraw       from

representation.        Counsel’s motion must state that a copy thereof

was served on Martisko.           We dispense with oral argument because

the facts and legal conclusions are adequately presented in the

materials     before     the    court    and    argument    would    not     aid   the

decisional process.

                                                                             AFFIRMED




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