                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-4355


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JAMES JOHN WILLIAMS, a/k/a Shy,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.    Louise W. Flanagan,
Chief District Judge. (5:09-cr-00206-FL-2)


Submitted:   March 29, 2011                 Decided:   April 15, 2011


Before WILKINSON, NIEMEYER, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


David L. Neal, Hillsborough, North Carolina, for Appellant.
George E.B. Holding, United States Attorney, Jennifer P. May-
Parker, Eric D. Goulian, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            James     John       Williams        pled   guilty,      without        a    plea

agreement, to two counts of distribution of five grams or more

of cocaine base (“crack”), and aiding and abetting the same, in

violation of 21 U.S.C. § 814(a) (2006) and 18 U.S.C. § 2 (2006).

The   district      court        sentenced       Williams     within     the     advisory

Guidelines range to concurrent ninety-eight-month terms on each

count.      Williams        appeals,       claiming       that     his      sentence       is

unreasonable.        Additionally,          Williams      argues     that     the       recent

changes to the statutory provisions and Sentencing Guidelines

relevant    to     crack    cocaine        offenses,      contained      in     the      Fair

Sentencing Act of 2010, 1 apply in this case, and thus serve to

reduce his sentencing range.                 Williams asks us to vacate his

sentence    and     remand       this    case      to   the    district        court      for

resentencing pursuant to these amendments.                     For the reasons that

follow, we affirm Williams’ sentence.

            This    court        reviews     a    sentence     for     reasonableness,

applying    an    abuse     of     discretion       standard.        Gall      v.       United

States,    552    U.S.     38,    51    (2007);     see     also   United      States      v.

Llamas, 599 F.3d 381, 387 (4th Cir. 2010).                     This review requires




      1
       Pub. L. No. 111-220, 124 Stat. 2372 (2010) (codified in
scattered sections of Title 21 of the United States Code).



                                             2
appellate consideration of both the procedural and substantive

reasonableness of a sentence.          Gall, 552 U.S. at 51.

              In determining procedural reasonableness, we consider

whether the district court properly calculated the defendant’s

advisory Guidelines range, 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) (internal quotation marks omitted).

              Williams   does   not    dispute     the     calculation         of   his

Guidelines range, but argues that his sentence is procedurally

unreasonable because the court failed to carefully consider the

§ 3553(a)      factors   and    provide     an    adequate       reason     for     its

sentence.      A district 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 exercise [its]

own   legal     decisionmaking        authority.’”          United       States      v.



                                        3
Boulware, 604 F.3d 832, 837 (4th Cir. 2010) (quoting Rita v.

United States, 551 U.S. 338, 356 (2007)).

             After      reviewing        the    record,        we       conclude         that   the

district     court      properly         considered         the     §     3553(a)         factors,

analyzed    the       arguments     presented         by    the     parties,        and    gave   a

thorough explanation of the sentence it selected.                                   We therefore

hold that Williams’ sentence is procedurally reasonable.

             Where there is “no significant procedural error,” we

next   assess     the     substantive          reasonableness            of    the       sentence,

taking     “‘into       account      the       totality       of     the       circumstances,

including       the    extent       of    any       variance       from       the     Guidelines

range.’”         United States v. Morace, 594 F.3d 340, 345-46 (4th

Cir.) (quoting Gall, 552 U.S. at 51), cert. denied, 131 S. Ct.

307    (2010).          If   the     sentence         is     within        the       appropriate

Guidelines       range,      this    Court      may        consider       it     presumptively

reasonable.       United States v. Mendoza-Mendoza, 597 F.3d 212, 216

(4th Cir. 2010).

             Citing Rita and Kimbrough v. United States, 552 U.S.

85 (2007), Williams argues that his Guidelines sentence should

not be accorded a presumption of reasonableness, because the

sentencing       disparity      for       crack      cocaine        and       powder       cocaine

offenses    is    not     based     on     empirical        evidence          and    a    thorough

review process.           However, Kimbrough does not require appellate

courts     to    discard      “the       presumption          of     reasonableness             for

                                                4
sentences based on non-empirically grounded Guidelines.”                               United

States    v.    Mondragon-Santiago,         564     F.3d     357,       366   (5th     Cir.),

cert. denied, 130 S. Ct. 192 (2009); see also United States v.

Talamantes,      620   F.3d    901,   901       (8th   Cir.      2010)       (per    curiam).

While     “district       courts      certainly        may       disagree           with   the

Guidelines       for   policy       reasons      and       may    adjust       a     sentence

accordingly[,] . . . if they do not, [appellate courts] will not

second-guess      their      decisions      under      a    more       lenient       standard

simply    because      the    particular        Guideline        is    not    empirically-

based.”        Mondragon-Santiago,        564     F.3d      at   367.         We    therefore

conclude that the presumption of reasonableness applies to our

review of Williams’ sentence.                   Moreover, because we conclude

that     Williams       failed       to     overcome          the       presumption         of

reasonableness for his within-Guidelines sentence, we hold that

the district court did not abuse its discretion in sentencing

him within the Guidelines range to conccurrent terms of ninety-

eight months’ imprisonment.

               Finally, Williams asks us to vacate his sentence and

remand this case to the district court pursuant to the Fair

Sentencing Act of 2010, which reduces the cocaine powder/cocaine

base disparity by amending the drug quantities triggering the

statutory penalties.           However, the Fair Sentencing Act is not

retroactive      and   is    only    applicable        to    defendants        who     commit

their offenses after its effective date.                              Williams’ criminal

                                            5
conduct predated the effective date of the Act and thus it does

not apply. 2     Accordingly, we reject this contention.

               For   the     foregoing    reasons,    we     affirm      Williams’

criminal judgment. 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




     2
       United States v. Diaz, 627 F.3d 930, 931 (2d Cir. 2010);
United States v. Reevey, 631 F.3d 110, 114-15 (3d 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), petition for cert. filed, __ U.S.L.W. __ (U.S. Mar.
4, 2011) (No. 10-9409); 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).



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