                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4390


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

ERIC DAVIS, a/k/a Lil E,

                  Defendant – Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Columbia.    Joseph F. Anderson, Jr., Chief
District Judge. (3:07-cr-00672-JFA-1)


Submitted:    July 24, 2009                 Decided:   August 12, 2009


Before NIEMEYER, MOTZ, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael Chesser, Aiken, South Carolina, for Appellant. Jane
Barrett Taylor, Assistant United States Attorney, Columbia,
South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Eric Davis appeals his conviction and sentence to 97

months in prison after pleading guilty to possession with intent

to distribute and distribution of a quantity of cocaine base, in

violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (2006).                     Davis’s

attorney has filed a brief pursuant to Anders v. California, 386

U.S.   738    (1967),   asserting,       in    his    opinion,    there   are   no

meritorious grounds for appeal but raising the issue of whether

Davis’s within-guideline sentence of 97 months is reasonable.

Davis has filed a pro se supplemental brief raising the issue of

whether his attorney should have objected to the drug quantity

used to determine his base offense level.               We affirm.

             We review a sentence for abuse of discretion.                Gall v.

United States, 128 S. Ct. 586, 591 (2007).                   The first step in

this   review   requires   us     to    ensure       that   the   district   court

committed no significant procedural error, such as improperly

calculating the guideline range.              United States v. Osborne, 514

F.3d 377, 387 (4th Cir.), cert. denied, 128 S. Ct. 2525 (2008).

We then consider the substantive reasonableness of the sentence

imposed, taking into account the totality of the circumstances.

Gall, 128 S. Ct. at 597.        We may address a claim of ineffective

assistance on direct appeal only if the lawyer’s ineffectiveness

conclusively     appears   from        the    record.        United   States    v.

Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).

                                         2
               In     sentencing,          the       district       court      should          first

calculate       the       guideline        range          and   give     the     parties         an

opportunity          to     argue      for        whatever       sentence           they        deem

appropriate.          United States v. Pauley, 511 F.3d 468, 473 (4th

Cir. 2007).         The district court should then consider the factors

under    18    U.S.C.       §    3553(a)     (2006)        to   determine      whether         they

support       the    sentence      requested         by    either     party.        Id.         When

rendering       a     sentence,        the       district        court       must     make       an

individualized assessment based on the facts presented, applying

the relevant § 3553(a) factors to the specific circumstances of

the case before it.               United States v. Carter, 564 F.3d 325, 328

(4th    Cir.        2009)       (quotations       and       citations       omitted).            In

explaining the chosen sentence, the “sentencing judge should set

forth     enough      to    satisfy        the       appellate      court      that       he    has

considered the parties’ arguments and has a reasoned basis for

exercising his own legal decisionmaking authority.”                                    Rita v.

United States, 127 S. Ct. 2456, 2468 (2007).

               We    have       reviewed    the      record     and    conclude       that      the

district court did not abuse its discretion in sentencing Davis,

and     his     sentence         is   both       procedurally          and     substantively

reasonable.          Moreover, the record does not conclusively show

ineffective assistance of counsel.                          First, the district court

properly determined Davis’s guideline range was 97 to 121 months

in prison.          In the plea agreement and hearing conducted pursuant

                                                 3
to Fed. R. Crim. P. 11, Davis agreed he was responsible for

between   150   and   500    grams   of       cocaine   base   for    purposes      of

determining     his   base     offense        level.      Consistent       with    the

parties’ stipulation, the probation officer determined Davis was

responsible     for   194.54   grams      of    cocaine   base,      and   his    base

offense level was thirty-two under U.S. Sentencing Guidelines

Manual § 2D1.1(c)(4) (2007).              Neither party objected to this

determination, as there was no basis for an objection.

           At sentencing, Davis objected to the disparity between

the guidelines for cocaine and for cocaine base, and he argued a

sentence below his guideline range was appropriate based on his

personal characteristics.         After listening to Davis’s argument,

the district court inquired as to what made his case different

in terms of a variance from another defendant similarly situated

“using 3553(a) factors.”         Davis responded that he had a minimal

criminal history; his employment and family relationship at that

time showed he had a capacity to adapt to supervision; and his

upbringing was disadvantaged.

           In response, the Government acknowledged that Davis’s

employer confirmed he was a good worker, and did not object to a

sentence at the low end of his guideline range.                       However, the

Government contended that Davis’s upbringing was not unique, and

considering the specific facts of the case, there was nothing

that set Davis apart from other defendants who were similarly

                                          4
situated.       Moreover, the Government argued it had already taken

into account the facts and circumstances in the case when it

gave   Davis    a    plea   deal    dismissing        a    charge    that     would   have

carried a ten-year mandatory minimum term.

            The district court gave Davis credit for an impressive

argument, but explained the court was not quite persuaded that a

variance was appropriate in this case.                       After considering the

advisory sentencing guidelines and relevant § 3553(a) factors,

the district court determined a minimum guideline sentence, not

a   variance,       was   appropriate       because       Davis   had   already       “been

given a break in how the plea was worked out.”                       We conclude that

the district court considered the parties’ arguments and made an

individualized assessment based on the facts presented and the

relevant § 3553(a) factors.                 The district court’s explanation

was adequate, and Davis’s sentence is not greater than necessary

to comply with the purposes of § 3553(a).

            In accordance with Anders, we have reviewed the entire

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 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 in this court for leave to

                                             5
withdraw from representation.       Counsel’s motion must state 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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