                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4011


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

KELVIN BEAUFORT, a/k/a Kev, a/k/a K Rock,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:05-cr-00104-FDW-CH-8)


Submitted:    May 8, 2009                   Decided:   June 12, 2009


Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Randolph M. Lee, Charlotte, North Carolina, for Appellant. Amy
Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Following a lengthy jury trial, Kelvin Beaufort was

convicted of conspiracy to possess with intent to distribute and

to   distribute         cocaine   and       cocaine      base,     in    violation       of    21

U.S.C.     § 846    (2006).           Beaufort     was     sentenced       to    324    months’

imprisonment.        Finding no error, we affirm.

             Counsel        filed       a     brief        pursuant       to       Anders      v.

California, 386 U.S. 738 (1967), in which he asserts there are

no   meritorious         issues       for    appeal      but    questions        whether      the

district     court       erred    in    its    application         of     U.S.     Sentencing

Guidelines        Manual    (“USSG”)         § 3B1.1(c)        (2007).          Beaufort      was

notified of his right to file a pro se supplemental brief, but

he   did    not    do    so.      The       Government         elected    not      to   file    a

responsive brief.

             When determining a sentence, the district court must

calculate the appropriate advisory Guidelines range and consider

it   in    conjunction         with    the    factors      set    forth       in   18   U.S.C.

§ 3553(a) (2006).           Gall v. United States, 128 S. Ct. 586, 596

(2007).     Appellate review of a district court’s imposition of a

sentence,     “whether          inside,       just    outside,           or     significantly

outside the Guidelines range,” is for abuse of discretion.                                    Id.

at 591.     Sentences within the applicable Guidelines range may be

presumed     by    the     appellate         court    to    be    reasonable.           United

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

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              The district court followed the necessary procedural

steps    in     sentencing   Beaufort,        appropriately        treating     the

Guidelines as advisory, properly calculating and considering the

applicable Guidelines range, and weighing the relevant § 3553(a)

factors.      Furthermore, Beaufort’s sentence, which is the low end

of the advisory Guidelines range and well below the applicable

statutory maximum, see 21 U.S.C.A. § 841(b)(1)(A) (West 1999 &

Supp. 2008) (prescribing maximum of life imprisonment), may be

presumed reasonable by this court.

              Counsel,   however,    contends        that   the   district    court

erred by increasing Beaufort’s offense level under § 3B1.1(c)

for his alleged aggravated role in the offense.                   When reviewing

the district court’s application of the Sentencing Guidelines,

we review findings of fact for clear error and questions of law

de novo.        United States v. Osborne, 514 F.3d 377, 387 (4th

Cir.), cert. denied, 128 S. Ct. 2525 (2008).                 “To qualify for an

adjustment under [§ 3B1.1], the defendant must have been the

organizer, leader, manager, or supervisor of one or more other

participants” in the criminal activity.                 USSG § 3B1.1, comment.

(n.2); see also United States v. Rashwan, 328 F.3d 160, 166 (4th

Cir.    2003)   (“Leadership      over   only   one     other     participant   is

sufficient as long as there is some control exercised.”).

              The   Presentence   Investigation        Report     indicated   that

“[o]n   some    occasions,   Beaufort        would    utilize     Malcolm    Colman

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Dawson,    a/k/a   “Mac”   [sic]     to   deliver        the   cocaine    to”    a   co-

conspirator.       Beaufort’s       own   testimony       indicated      that   Dawson

served     as    his   driver       and       delivery     person.         Telephone

conversations admitted at trial further establish that Dawson

acted at Beaufort’s behest.           The aggravated role enhancement was

therefore supported by the record.                Moreover, we conclude that

the district court did not abuse its discretion in imposing the

chosen sentence. ∗

            In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.     Accordingly, we affirm the judgment of the district

court.     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 move this court for leave

to withdraw from representation.                 Counsel’s motion must state

     ∗
        Beaufort was sentenced on the same date Kimbrough v.
United States, 128 S. Ct. 558 (2007), issued. Although counsel
did not object to the crack/powder disparity at sentencing, he
moved the district court on December 19, 2007, to reconsider its
sentence in light of Kimbrough.    The court denied the motion,
stating it “was aware of its discretion to vary upwardly or
downwardly.”    Thus, Beaufort cannot establish that the court
plainly   erred   in  failing  to   specifically  consider   the
crack/powder disparity on the record.     See United States v.
White, 405 F.3d 208, 223 (4th Cir. 2005) (requiring showing of
“actual prejudice”).



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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




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