                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 13-4485


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOHNNY ARTHUR BYRD,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston.     Richard M. Gergel, District
Judge. (2:12-cr-00797-RMG-1)


Submitted:   January 9, 2014                 Decided:   January 17, 2014


Before AGEE and    FLOYD,   Circuit   Judges,    and    HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Beattie B. Ashmore, BEATTIE B. ASHMORE, P.A., Greenville, South
Carolina, for Appellant.   Nathan S. Williams, Assistant United
States Attorney, Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Johnny    Arthur       Byrd   pled    guilty       pursuant    to    a    plea

agreement to one count of possession with intent to distribute

marijuana and aiding and abetting, in violation of 18 U.S.C.

§§ 2, 841(a)(1), (b)(1)(D) (2012), and one count of using and

carrying a firearm during and in relation to and possessing a

firearm in furtherance of a drug trafficking crime, in violation

of   18   U.S.C.     §§ 2,   924(c)(1)        (2012).          The   district        court

calculated Byrd’s Guidelines range on the marijuana count at

twenty-seven to thirty-three months’ imprisonment and Guidelines

sentence on the firearm count at a consecutive term of sixty

months’ imprisonment, U.S. Sentencing Guidelines Manual (2012),

and sentenced Byrd to thirty-three months’ imprisonment on the

marijuana     count    and     a    consecutive        term     of   sixty       months’

imprisonment on the firearm count.

            On    appeal,    counsel      has    filed     a    brief     pursuant      to

Anders v. California, 386 U.S. 738 (1967), stating that there

are no meritorious issues for appeal, but raising as issues for

review whether the district court reversibly erred in accepting

Byrd’s    guilty     plea    and    abused       its   discretion         in    imposing

sentence.        Byrd was informed of his right to file a pro se

supplemental brief, but he has not done so.                          The Government

declined to file a brief and does not seek to enforce the appeal

waiver in Byrd’s plea agreement.              We affirm.

                                          2
               Because Byrd did not move in the district court to

withdraw his guilty plea, the adequacy of the Fed. R. Crim. P.

11 hearing is reviewed for plain error only.                              United States v.

Martinez, 277 F.3d 517, 524–26 (4th Cir. 2002).                             To demonstrate

plain error, a defendant must show: (1) there was error; (2) the

error    was    plain;      and   (3)       the    error      affected     his    substantial

rights.        United      States      v.    Olano,      507     U.S.   725,     732   (1993).

In the    guilty      plea      context,      a       defendant    meets    his    burden     to

establish that a plain error affected his substantial rights by

showing a reasonable probability that he would not have pled

guilty    but        for    the      district          court’s     Rule     11    omissions.

United States v. Massenburg, 564 F.3d 337, 343 (4th Cir. 2009).

               Our    review      of    the       transcript       of    the     guilty     plea

hearing     leads          us   to     conclude          that     the      district         court

substantially complied with the mandates of Rule 11 in accepting

Byrd’s guilty plea and that the court’s omissions did not affect

Byrd’s substantial rights.                   Critically, the transcript reveals

that the district court ensured that the plea was supported by

an independent basis in fact, and that Byrd entered the plea

knowingly       and        voluntarily        with       an     understanding          of    the

consequences.         United States v. DeFusco, 949 F.2d 114, 116, 120

(4th Cir. 1991).            Accordingly, we discern no plain error in the

district court’s acceptance of Byrd’s guilty plea.



                                                  3
              Turning          to    Byrd’s         sentence,       we        review     it    for

reasonableness            “under         a         deferential        abuse-of-discretion

standard.”         Gall v. United States, 552 U.S. 38, 41, 51 (2007).

This     review      entails         appellate           consideration          of     both     the

procedural         and    substantive             reasonableness         of    the     sentence.

Id. at     51.           In    determining             procedural     reasonableness,           we

consider      whether         the    district          court    properly       calculated      the

defendant’s        advisory         Guidelines          range,     gave       the    parties    an

opportunity to argue for an appropriate sentence, considered the

18 U.S.C. § 3553(a) (2012) factors, selected a sentence based on

clearly erroneous facts, and sufficiently explained the selected

sentence.      Id. at 49–51.

              If    the       sentence       is    free    of    “significant          procedural

error,” we review it for substantive reasonableness, “tak[ing]

into account the totality of the circumstances.”                                     Id. at 51.

If the    sentence        is    within       the       properly    calculated          Guidelines

range, we apply a presumption on appeal that the sentence is

substantively reasonable.                United States v. Susi, 674 F.3d 278,

289 (4th Cir. 2012).                Such a presumption is rebutted only if the

defendant shows “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

omitted).



                                                   4
           In this case, the district court correctly calculated

and considered the advisory Guidelines range and sentence and

heard argument from counsel and allocution from Byrd.              The court

explained that the sentence of ninety-three months’ imprisonment

was warranted in light of the nature and circumstances of Byrd’s

offense conduct, his history and characteristics, and the need

for the sentence to reflect the seriousness of Byrd’s offense

conduct,   to     promote   respect   for    the    law,   to   provide   just

punishment, and to protect the public from further crimes by

Byrd.    Byrd does not offer any grounds to rebut the presumption

on appeal that his within-Guidelines sentence is substantively

reasonable.       Accordingly, we conclude that the district court

did not abuse its discretion in sentencing Byrd.

           Finally, in accordance with Anders, we have reviewed

the remainder of the record in this case and have found no

meritorious issues for appeal.        We therefore affirm the district

court’s judgment.        This court requires that counsel inform Byrd,

in writing, of the right to petition the Supreme Court of the

United   States    for   further   review.     If   Byrd   requests   that   a

petition be filed, but counsel believes that such a petition

would be frivolous, then counsel may move in this court for

leave to withdraw from representation.               Counsel’s motion must

state that a copy thereof was served on Byrd.



                                      5
            We dispense with oral argument because the facts and

legal    contentions    are   adequately   presented    in   the   materials

before   this   court   and   argument   would   not   aid   the   decisional

process.

                                                                     AFFIRMED




                                     6
