                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 06-4496



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus

DERRICK JAMES HORNE,
                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
District Judge. (3:04-cr-00213-1)


Submitted:   April 18, 2007                   Decided:   May 21, 2007


Before NIEMEYER, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Reggie E. McKnight, MCKNIGHT LAW FIRM, P.L.L.C., Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Kimlani Murray Ford, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Derrick    James    Horne   appeals   his    convictions    and

concurrent 168-month prison sentences imposed following his guilty

plea to one count of possession with intent to distribute cocaine

base and aiding and abetting the same, in violation of 18 U.S.C.

§ 2 (2000), 21 U.S.C.A. § 841 (West 1999 & Supp. 2006), and one

count of possession with intent to distribute cocaine, in violation

of 21 U.S.C.A. § 841.          Horne’s attorney has filed a brief in

accordance    with    Anders   v.   California,   386   U.S.   738   (1967),

acknowledging the absence of any meritorious issues for appeal,*
but questioning whether the district court erred in failing to

impose a sentence below the guideline range.        Horne was advised of

his right to file a pro se supplemental brief, but did not file

one.

            In sentencing a defendant after United States v. Booker,

543 U.S. 220 (2005), the district court must calculate the advisory

guideline range and then consider whether that range “serves the

factors set forth in [18 U.S.C.A.] § 3553(a) [West 2000 & Supp.
2006)] and, if not, select a sentence that does serves those

factors.”     United States v. Green, 436 F.3d 449, 456 (4th Cir.),
cert. denied, 126 S. Ct. 2309 (2006).        This court reviews a post-

Booker sentence “to determine whether the sentence is within the


       *
      Although counsel notes that there is a waiver contained in
Horne’s plea agreement, the government does not seek to enforce the
waiver.   Because the government has not relied on the waiver
provision to assert that appellate review is precluded, the waiver
does not bar Horne’s appeal. United States v. Blick, 408 F.3d 162,
168 (4th Cir. 2005).

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statutorily prescribed range and is reasonable.”              United States v.

Moreland, 437 F.3d 424, 433 (4th Cir.) (internal quotation marks

and citation omitted), cert. denied, 126 S. Ct. 2054 (2006).                   “[A]

sentence       within   the   proper     advisory       Guidelines     range     is

presumptively reasonable.” United States v. Johnson, 445 F.3d 339,

341 (4th Cir. 2006) (citations omitted).               “[A] defendant can only

rebut    the    presumption   by   demonstrating       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), petition for cert.
filed,          U.S.L.W. ___ (U.S. July 21, 2006) (No. 06-5439).

               Here, Horne’s concurrent 168-month prison sentences fall

within the statutorily prescribed range of ten years to life, see

21 U.S.C.A. § 841(b)(1)(A), and within the properly calculated

guideline range of 160 to 210 months’ imprisonment.                 In sentencing

Horne, the district court considered the advisory guidelines, the

§ 3553(a) sentencing factors, and the arguments of Horne’s counsel

for a sentence below the guideline range.           Our review of the record
convinces us that Horne has failed to rebut the presumption of

reasonableness accorded to sentences within the properly calculated

guideline range.

               In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal.                      We

therefore affirm Horne’s convictions and sentences.                   This court

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

petition the Supreme Court of the United States for further review.


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If Horne 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 Horne.      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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