                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-4124


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TIMOTHY WAYNE THOMPSON,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:08-cr-00496-WO-1)


Submitted:   March 21, 2011                 Decided:   April 29, 2011


Before SHEDD, DUNCAN, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael E. Archenbronn, LAW OFFICE OF MICHAEL E. ARCHENBRONN,
Winston-Salem, North Carolina, for Appellant.    John W. Stone,
Jr., Acting United States Attorney, Terry M. Meinecke, Assistant
United   States  Attorney,   Greensboro,  North  Carolina,   for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Timothy Wayne Thompson appeals his 120-month sentence

imposed after a guilty plea to one count of distribution of

cocaine base in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)

(2006).    We affirm.

            Thompson, who twice sold cocaine base to an undercover

police officer, also sold a hand grenade simulator and a ground

burst simulator to the same officer.                  Thompson’s Presentence

Investigation Report (“PSR”) recommended a two-level enhancement

to his offense level for possession of a dangerous weapon.                    The

district        court     overruled     Thompson’s       objection    to      the

enhancement.        Thompson challenges that enhancement on appeal,

claims     that     the      district   court       imposed   a   procedurally

unreasonable sentence, and argues that a remand is necessary in

light of the Fair Sentencing Act of 2010.

            A     sentence    is   reviewed   for    reasonableness   under    an

abuse of discretion standard.            Gall v. United States, 552 U.S.

38, 51 (2007).          This review requires consideration of both the

procedural and substantive reasonableness of a sentence.                   Id.;

see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).

After determining whether the district court properly calculated

the defendant’s advisory guideline range, this court must decide

whether the district court considered the 18 U.S.C. § 3553(a)

(2006) factors, analyzed the arguments presented by the parties,

                                        2
and sufficiently explained the selected sentence.                   Lynn, 592

F.3d at 575-76; see United States v. Carter, 564 F.3d 325, 330

(4th Cir. 2009).       Properly preserved claims of procedural error

are subject to harmless error review.               Lynn, 592 F.3d at 576.

If the sentence is free of significant procedural error, the

appellate court reviews the substantive reasonableness of the

sentence.     Id. at 575; United States v. Pauley, 511 F.3d 468,

473 (4th Cir. 2007).



                        I.      Sentence Enhancement

            Under U.S. Sentencing Guidelines Manual § 2D1.1(b)(1)

(2009), a district court must increase a defendant’s offense

level two levels if the defendant possessed a dangerous weapon

during a drug offense. USSG § 2D1.1(b)(1).               The enhancement is

proper when “the weapon was possessed in connection with drug

activity that was part of the same course of conduct or common

scheme as the offense of conviction.”           United States v. Manigan,

592 F.3d 621, 628-29 (4th Cir. 2010) (internal quotation marks

omitted).     Whether    the     district   court     properly    applied   the

enhancement    under    USSG    § 2D1.1(b)(1)    is    reviewed     for    clear

error.      United     States    v.   McAllister,      272   F.3d   228,     234

(4th Cir. 2001).       Under a clear error standard of review, this

court will reverse only if “left with the definite and firm

conviction that a mistake has been committed.”               United States v.

                                       3
Harvey, 532 F.3d 326, 336-37 (4th Cir. 2008) (internal quotation

marks omitted).

            The definition of “dangerous weapon” is found in the

commentary    to   USSG      § 1B1.1.    That   section      defines    dangerous

weapon as

       (i) an instrument capable of inflicting death or
       serious bodily injury; or (ii) an object that is not
       an instrument capable of inflicting death or serious
       bodily injury but (I) closely resembles such an
       instrument; or (II) the defendant used the object in a
       manner that created the impression that the object was
       such an instrument.

USSG    § 1B1.1,   comment.      (n.1(D)).      Thompson      argues    that   the

devices were neither dangerous weapons, nor did they resemble

dangerous weapons because each was labeled “simulator.”                        The

court    accurately    observed,     however,       that   each    simulator   was

labeled “explosive” and each actually resembled the weapon it

was designed to simulate.            In addition, the court emphasized

that the warning labels on the stimulators state that the user

should    immediately     throw    the     simulators      after    removing   the

safety caps or pulling the detonation cords.                On these facts, we

conclude that the district court did not clearly err in imposing

the USSG § 2D1.1 enhancement.



                       II.    Explanation of Sentence

            Thompson      next    argues     that    the    court    offered   an

inadequate explanation of his sentence, despite the fact that he

                                         4
requested a variance.       While the district court must conduct an

individualized assessment of the defendant, the court is not

required   to      “robotically      tick    through      § 3553(a)’s     every

subsection” on the record.           United States v. Johnson, 445 F.3d

339, 345 (4th Cir. 2006).         The sentencing court’s explanation

must be “sufficient ‘to satisfy the appellate court that [the

district court] has considered the parties’ arguments and has a

reasoned   basis    for   exercising    [its]   own     legal   decisionmaking

authority.’”       United   States    v.    Boulware,    604    F.3d   832,   837

(4th Cir. 2010) (quoting Rita v. United States, 551 U.S. 338,

356 (2007)).       But when a sentencing court decides to simply

apply the Guidelines, “doing so will not necessarily require

lengthy explanation.”        Rita, 551 U.S. at 356. As we recently

stated:

     Gall was quite explicit that district courts should
     provide more significant justifications for major
     departures than for minor ones.     But when a district
     court does not depart or vary at all, it may provide a
     less     extensive,    while    still    individualized,
     explanation.     This is because guidelines sentences
     themselves are in many ways tailored to the individual
     and   reflect   approximately  two   decades  of   close
     attention to federal sentencing policy.

United States v. Johnson, 587 F.3d 625, 639 (4th Cir. 2009),

cert. denied, Martin v. United States, 130 S. Ct. 2128 (2010).

(internal citations, quotation marks and brackets omitted).

           We conclude that Thompson’s claim is without merit.

The district court discussed the seriousness of trying to sell

                                       5
explosives in the course of a drug transaction, noted Thompson’s

escalating       criminal       history,        and,     while      recognizing    the

disparity between powder cocaine and cocaine base, declined to

vary in light of the seriousness of the offense. We decline to

disturb the sentence as unreasonable.



                          III. Fair Sentencing Act

               Thompson also requests that his sentence be vacated

and remanded in light of the Fair Sentencing Act of 2010.                           The

Fair   Sentencing      Act,     which   reduces         the   cocaine/cocaine      base

disparity       by   amending     the    drug        quantities      triggering    the

statutory penalties, is not retroactive but only applicable to

defendants who commit their offenses after its effective date.

See United States v. Diaz, 627 F.3d 930, 931 (2d Cir. 2010);

United States v. Brewer, 624 F.3d 900, 909 n.7 (8th Cir. 2010),

petition for cert. filed, ___ U.S.L.W. ___ (U.S. Feb 24, 2011)

(No.    10-9224);      United     States        v.   Bell,    624    F.3d   803,    814

(7th Cir. 2010); United States v. Gomes, 621 F.3d 1343, 1346

(11th Cir. 2010),       petition      for       cert.   filed,    ___   U.S.L.W.    ___

(U.S. Feb. 15, 2011) (No. 10-9271); United States v. Carradine,

621 F.3d 575, 580 (6th Cir. 2010), cert. denied, ___ U.S.L.W.

___    (U.S.    Mar.   21,    2011)     (No.      10-8937).         Since   Thompson’s

offense predates the effective date of the Fair Sentencing Act,

it does not apply to his case.

                                            6
              Accordingly, we deny Thompson’s motion for leave to

file a pro se supplemental brief and affirm the judgment of the

district    court.     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




                                         7
