                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4889


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

WEINTRAL DANIEL CURETON,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Spartanburg.   Henry M. Herlong, Jr., Senior
District Judge. (7:09-cr-00432-HMH-1)


Submitted:   July 15, 2010                 Decided:   August 20, 2010


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


Affirmed by unpublished per curiam opinion.


David W. Plowden, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Kevin F. McDonald, Acting United
States Attorney, A. Lance Crick, Assistant United States
Attorney, Greenville, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Weintral Daniel Cureton pled guilty to being a felon

in possession of a firearm in violation of 18 U.S.C. § 922(g)

(2006).       A presentence report was issued that classified Cureton

as    an   Armed    Career    Criminal,        and      set   his     advisory    guideline

range at 168-210 months’ imprisonment, which was well above the

statutory      maximum       of   120    months’         imprisonment        that    Cureton

actually faced.              Cureton did not object to the presentence

report.

              At    Cureton’s      sentencing           hearing,      Cureton’s      counsel

pointed out that the district court could sentence Cureton to

“whatever sentence the court deems fit.”                        Counsel also asked the

court to “take into consideration” the fact that Cureton did not

run    from    police    when      they       attempted        to   arrest     him    on    an

outstanding        warrant.       However,         at   no    point    did   counsel       ever

explicitly ask that Cureton receive a particular sentence, be

sentenced within a particular range, or even request that he

receive a       sentence      below     the    120      month   statutory        maximum     he

faced.

              When asked if he had anything to add to his attorney’s

statements, Cureton stated that he was “going through some hard

times.”       He stated that he felt bad because he was unable to

provide for his sick mother and the rest of his family, and that

at the time he was arrested, he was planning to sell the gun in

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his   possession      so    that   he     could    “provide       for    [his]    family.”

While    Cureton      did    ask   the    court     for    “mercy,”       he,    like   his

attorney, failed to ask for a particular sentence, or to be

sentenced within a particular range, or even for a sentence that

was less than the 120 month statutory maximum.

              After     hearing     from    Cureton        and    his    attorney,      the

district court stated:

      The [c]ourt has considered those factors under [18
      U.S.C. § 3553(a)].    The [c]ourt has also considered
      the guidelines as advisory only. The [c]ourt believes
      that a [120 month] sentence is appropriate and will
      accomplish the purposes of the statute and considering
      the factors of this case.

The district court then proceeded to sentence Cureton to 120

months’ imprisonment.            Cureton appealed.

              This    court      reviews    preserved        claims      of     procedural

sentencing error for abuse of discretion, reversing any sentence

based    upon    such       an   error,    unless     the        error   was     harmless;

however, unpreserved claims of procedural sentencing error are

reviewed under the more rigorous plain error test.                              See United

States   v.     Lynn,    592     F.3d    572,     575-79    (4th    Cir.      2010).     To

preserve his claim that a district court committed a procedural

sentencing error by inadequately explaining the reasoning for

its sentence, a defendant must, at minimum, “draw[] arguments

from § 3553 for a sentence different than the one ultimately

imposed.”       Lynn, 592 F.3d at 578.


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               In other words, while a defendant is not necessarily

required to “complain about a judicial choice after it has been

made,” he must, “inform[] the court . . . of the action [he]

wishes    the     court       to   take.”           Id.    at    577-78       (citing      United

States v. Bartlett, 567 F.3d 901, 910 (7th Cir. 2009); Fed. R.

Crim. P. 51(b)) (emphasis removed).                        Applying this standard, we

find that Cureton has failed to preserve his objection to the

district       court’s       explanation     of       his    sentence.           Accordingly,

plain error review is appropriate.

               To establish plain error, Cureton must show that an

error (1) was made, (2) is plain (i.e., clear or obvious), and

(3)     affects        his    substantial           rights.             United      States     v.

Massenburg,       564    F.3d      337,   342-43          (4th   Cir.    2009).         Even   if

Cureton makes this three-part showing, this court may exercise

its    discretion        to   correct     the        error       only    if    it   “seriously

affects the fairness, integrity or public reputation of judicial

proceedings.”           Id. at 343 (internal quotation marks omitted).

Here,     even        assuming      the     district         court’s          explanation      of

Cureton’s sentence was inadequate, Cureton has failed to show

that     any     error       affected     his       substantial          rights,      or     that

affirming his sentence would “seriously affect[] the fairness,

integrity        or     public      reputation”            of     the     justice       system.




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          Accordingly, we affirm the district court’s judgment.

We dispense with oral argument because the issues are adequately

presented in the materials before the court and argument would

not aid the decisional process.

                                                        AFFIRMED




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