                                     UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 19-4362


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

MARCUS PHILLIP DRAKE,

                     Defendant - Appellant.



Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Max O. Cogburn, Jr., District Judge. (3:18-cr-00111-MOC-DCK-1)


Submitted: November 20, 2019                                Decided: December 12, 2019


Before KING, RICHARDSON, and QUATTLEBAUM, Circuit Judges.


Affirmed by unpublished per curiam opinion.


J. Edward Yeager, Jr., Cornelius, North Carolina, for Appellant. Amy Elizabeth Ray,
Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Without the benefit of a plea agreement, Marcus Phillip Drake pled guilty to

conspiracy to distribute and to possess with intent to distribute 50 grams of actual

methamphetamine and 500 grams or more of a mixture and substance containing a

detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A),

846 (2012), and possession with intent to distribute 500 grams or more of a mixture and

substance containing a detectable amount of methamphetamine, also in violation of 21

U.S.C. § 841(a)(1), (b)(1)(A). Based on a total adjusted offense level of 31 and a criminal

history category of I, Drake’s advisory Sentencing Guidelines range was 108 to 135

months’ imprisonment. * The district court granted Drake’s request for a downward

variance based on 18 U.S.C. § 3553(a)(6) (2012), imposing a 90-month term of

imprisonment.

       On appeal, Drake’s attorney has filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), asserting that there are no meritorious grounds for appeal but questioning

whether the district court abused its discretion in declining to award the full downward

variance sought by Drake. Although advised of his right to file a pro se supplemental brief,

Drake has not done so. We affirm.




       *
         Because Drake received the benefit of the safety valve reduction, see U.S.
Sentencing Guidelines Manual §§ 2D1.1(b)(17), 5C1.2 (2016), the district court was able
to sentence him below the otherwise-operative statutory, mandatory minimum 10 years’
imprisonment.

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       We review Drake’s downward variant sentence for reasonableness, applying an

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

first reviews for significant procedural error and, if the sentence is free from such error, we

then consider the substantive reasonableness of the sentence. Id. Procedural error includes

improperly calculating the defendant’s Guidelines range, treating the Guidelines range as

mandatory, failing to consider the 18 U.S.C. § 3553(a) (2012) factors, or failing to

sufficiently explain the selected sentence. Id. We presume that a sentence within or below

the defendant’s properly calculated Guidelines range is substantively reasonable, United

States v. Susi, 674 F.3d 278, 289-90 (4th Cir. 2012), and this “presumption can only be

rebutted by showing that the sentence is unreasonable when measured against the 18 U.S.C.

§ 3553(a) factors,” United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014).

       We have reviewed the record and find that Drake’s sentence is both procedurally

and substantively reasonable. The district court properly calculated Drake’s advisory

Guidelines range and adequately explained its reasons for rejecting his request for a greater

downward variance.       Nor do we find any basis in the record for overcoming the

presumption of substantive reasonableness accorded Drake’s below-Guidelines sentence.

       In accordance with Anders, we have reviewed the record and have found no

meritorious issues for appeal. We therefore affirm the district court’s judgment. This court

requires that counsel inform Drake, in writing, of his right to petition the Supreme Court

of the United States for further review. If Drake 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

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was served on Drake. 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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