                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-5090


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ROOSEVELT DEWELL ROSS,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Orangeburg.    Margaret B. Seymour, District
Judge. (5:07-cr-01155-MBS-2)


Submitted:   February 10, 2010                Decided:   June 2, 2010


Before MOTZ, SHEDD, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Cameron B. Littlejohn, Jr., Columbia, South Carolina, for
Appellant.    Stanley Duane Ragsdale, Assistant United States
Attorney, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Roosevelt Dewell Ross appeals his convictions and 360-

month sentence.         Ross was convicted by a jury of possession with

intent to distribute a quantity of cocaine, in violation of 21

U.S.C.    §     841(a)(1)           (2006),     possession             of    a    firearm       in

furtherance        of   a    drug    trafficking          crime,       in   violation      of   18

U.S.C. § 924(c) (2006), and possession of a firearm after having

been convicted of a crime punishable by more than one year of

imprisonment, in violation of 18 U.S.C. § 922(g) (2006).

              In the presentence report (PSR), the probation officer

determined     that         Ross    qualified       for    enhanced         sentencing     as    a

career offender, which mandated a base offense level of thirty-

four and a criminal history category of VI, pursuant to U.S.

Sentencing     Guidelines           Manual    (USSG)       §   4B1.1(b)          (2007).        The

total    sentencing          range    for     all    counts,       pursuant        to    USSG    §

4B1.1(c)(2)(B), (c)(3) was 360 months to life imprisonment.                                     At

sentencing,        counsel         for   Ross       stated      that        there       were    no

objections to the PSR and argued for a sentence at the bottom of

the Guidelines range.                The district court adopted the PSR and

sentenced Ross to a total of 360 months of imprisonment, six

years    of   supervised           release,    and    a     $300       special     assessment.

Ross timely appealed.

              In    this      court,     counsel      filed        a    brief     pursuant      to

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

                                               2
are no meritorious issues for appeal, but questioning whether

the district court erred in allowing the Government to present

evidence of a call from an unknown caller to a cell phone to

establish ownership of that phone, and whether Ross’s sentence

was properly determined.              Ross was notified of his opportunity

to file a pro se supplemental brief but has not done so.                                   The

Government declined to file a brief.

              Counsel       first    questions      whether       the    district     court

erred   in    allowing       the    Government       to    present       evidence     of    an

unknown      caller    to    a     cell    phone    in    order     to    establish        the

ownership of the cell phone.                 This court reviews the district

court’s      rulings    admitting         evidence       for    abuse    of   discretion.

United States v. Basham, 561 F.3d 302, 325 (4th Cir. 2009).                                 An

abuse   of    discretion         occurs    only    when    “the     trial     court      acted

arbitrarily      or    irrationally         in    admitting       evidence.”          United

States v. Williams, 445 F.3d 724, 732 (4th Cir. 2006) (internal

quotation marks and citation omitted).                         Evidentiary rulings are

also subject to review for harmless error under Federal Rule of

Criminal      Procedure       52,    and    will     be    found     harmless       if     the

reviewing court can conclude, “‘without stripping the erroneous

action from the whole, that the judgment was not substantially

swayed by the error.’”              United States v. Abu Ali, 528 F.3d 210,

231 (4th Cir. 2008) (quoting Kotteakos v. United States, 328

U.S. 750, 765 (1946)), cert. denied, 129 S. Ct. 1312 (2009).

                                             3
Our review of the record leads us to conclude that the court did

not err in admitting the evidence in question.

              Counsel    next     questions       whether        the    district       court

properly      determined    Ross’s    sentence.             This       court    reviews       a

sentence      for   reasonableness       under         an    abuse       of     discretion

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

review requires appellate consideration of both the procedural

and   substantive       reasonableness       of    a    sentence.             Id.      After

determining whether the district court properly calculated the

defendant’s     advisory        Guidelines    range,        this       court    must       then

consider whether the district court considered the 18 U.S.C.

§ 3553(a) (2006) factors, analyzed any arguments presented by

the parties, and sufficiently explained the selected sentence.

Id.   “Regardless of whether the district court imposes an above,

below,   or    within-Guidelines       sentence,            it   must    place        on   the

record an ‘individualized assessment’ based on the particular

facts of the case before it.”           United States v. Carter, 564 F.3d

325, 330 (4th Cir. 2009).              A defendant preserves a claim of

procedural     error    “[b]y     drawing     arguments          from    §     3553    for    a

sentence different than the one ultimately imposed.”                                  United

States v. Lynn, __ F.3d __, 2010 WL 322176, at *4 (4th Cir.

2010).

              In this case, counsel does not assert any specific

error,     procedural      or    substantive,          in    the   district           court’s

                                         4
sentencing       determination.               Our          review    of        the     sentencing

transcript reveals that the district court failed to provide an

individualized         explanation         for       its    sentence,         as     required    by

Carter.        Ross,     however,      failed        to     preserve        this     error.      At

sentencing,         counsel         implicitly         argued           “the       history      and

characteristics of the defendant,” 18 U.S.C. § 3553(a)(1), and

requested      that     the    district       court         impose      a    sentence      at   the

bottom    of    the    Guidelines          range,     which       was       360    months.       The

district       court     imposed      the     requested           sentence,          and   because

“[h]is attorney did not argue for a sentence different than the

within-Guidelines           sentence       [Ross]      ultimately            received,”        Lynn,

2010 WL 322176, at *4, this court reviews only for plain error.

               To demonstrate plain error, Ross “must show that an

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

(3) affects substantial rights.                       Lynn, 2010 WL 322176, at *2.

As discussed above, the district court erred, and under Carter,

the error was plain.            Ross cannot, however, demonstrate that the

error affected his substantial rights, because “[h]is attorney’s

arguments before the district court urged that court only to

impose    a    sentence       [at    the    minimum         of]   the       Guidelines       range,

which it did.”         Lynn, 2010 WL 322176, at *5.

               Finally        this         court           reviews          the       substantive

reasonableness         of     the     sentence,            “taking       into        account    the

‘totality      of     the   circumstances,            including         the       extent   of   any

                                                 5
variance from the Guidelines range.’”                           United States v. Pauley,

511 F.3d 468, 473 (4th Cir. 2007) (quoting Gall, 552 U.S. at

51).     This court presumes that a sentence imposed within the

properly calculated guidelines range is reasonable.                                         Rita v.

United States, 551 U.S. 338, 347 (2007); United States v. Smith,

566    F.3d    410,      414    (4th    Cir.       2009).         Ross        has    presented     no

information         to     demonstrate              that        the      totality           of    the

circumstances         would      support      a        sentence       below     the       Guidelines

range, and our review of the record reveals none.

               In accordance with Anders, we have reviewed the record

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

We therefore affirm Ross’s convictions and sentence.                                      This court

requires that counsel inform Ross, in writing, of the right to

petition      the   Supreme          Court    of       the    United     States       for    further

review.       If Ross 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 Ross.

               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

                                                   6
