                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-5192


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

VERNARD JEROME MATHIS, a/k/a Cuz,

                  Defendant - Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Rock Hill.    Joseph F. Anderson, Jr., Chief
District Judge. (0:02-cr-01173-JFA-1)


Submitted:    July 29, 2009                 Decided:   August 12, 2009


Before MICHAEL, MOTZ, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


John D. Elliot, Columbia, South Carolina, for Appellant. Robert
Frank Daley, Jr., Marshall Prince, II, Assistant United States
Attorneys, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Vernard       Jerome    Mathis    appeals     his   sentence    imposed

after a remand.         At trial, the jury was not instructed to make

an    individualized         determination      regarding     drug    quantity      with

respect to Mathis and his role in the drug conspiracy for which

he    was    convicted.        On    appeal,    his   sentence      was   vacated    and

remanded to the district court for resentencing because the jury

did    not    make    any    determination      regarding     drug    quantity      with

respect to Mathis, nor did Mathis admit to being responsible for

a particular drug quantity.                The court ruled Mathis faced a

twenty-year      maximum       sentence    under      21    U.S.C.    § 841(b)(1)(C)

(2006).      While the court found no error with Mathis’ conviction,

the court declined to rule on Mathis’ claim that the district

court       abused     its     discretion       ordering      the     sentence       run

consecutive to the five life sentences Mathis was serving in

state custody.         See United States v. Brooks, 524 F.3d 549, 555

n.10, 560-61 (4th Cir.), cert. denied, 129 S. Ct. 519 (2008).

              At resentencing, the district court found that because

of the maximum statutory sentence, Mathis’ Sentencing Guidelines

sentence was twenty-years’ imprisonment.                    After some discussion

about whether the sentence should run concurrently, partially

concurrent      or     consecutively       to     Mathis’     state-imposed         life

sentences,      the    court    ordered     Mathis     to    serve    a   twenty-year

sentence to run consecutively to the state sentences.

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              Mathis’       counsel      has       filed    a      brief    pursuant      to

Anders v. California, 386 U.S. 738 (1967), asserting there are

no meritorious arguments for appeal, but raises for the court’s

consideration,          whether    the    district         court    erred    imposing      a

consecutive sentence.             Mathis was notified of the opportunity to

file    a    pro   se    supplemental     brief,      but    did     not    do   so.     The

Government chose not to file a brief.

              This court reviews a sentence imposed by a district

court under a deferential abuse of discretion standard.                            Gall v.

United States, 552 U.S. 38, ___, 128 S. Ct. 586, 597 (2007);

United States v. Evans, 526 F.3d 155, 161 (4th Cir. 2008).                                 In

reviewing a sentence, the appellate court must first ensure that

the     district        court   committed      no    procedural       error,      such    as

failing to calculate or improperly calculating the Guidelines

range, treating the Guidelines as mandatory, failing to consider

the § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen

sentence — including an explanation for any deviation from the

Guidelines range.           Gall, 552 U.S. at __, 128 S. Ct. at 597.                       If

there       are    no    procedural      errors,      the       appellate    court       then

considers the substantive reasonableness of the sentence.                                Id.

A substantive reasonableness review entails taking into account

the totality of the circumstances.                   United States v. Pauley, 511

F.3d 468, 473 (4th Cir. 2007) (quotations and citation omitted).

                                               3
Further, this court may presume a sentence within the guidelines

range to be reasonable.           Id.

              Under U.S. Sentencing Guidelines Manual § 5G1.3(c), in

any case involving an undischarged term of imprisonment, “the

sentence      for    the    instant      offense    may     be     imposed    to    run

concurrently,        partially     concurrently,     or    consecutively       to   the

prior undischarged term of imprisonment to achieve a reasonable

punishment for the instant offense.”                In reaching its decision,

the court should consider the § 3553(a) sentencing factors, the

type and length of the undischarged sentences, the time served

and the time likely to be served on the undischarged sentences,

whether the undischarged sentence was imposed in state court or

federal    court      and   any    other      circumstances       relevant    to    the

determination.         See USSG § 5C1.3 (cmt. n.3(A)).                  In addition,

subsection (c) does not authorize a downward departure for the

instant offense for a period of imprisonment already served on

the undischarged term of imprisonment.                    See USSG § 5C1.3 (cmt.

n.3(E)).

              We find there was no abuse of discretion with respect

to   either    the    length      of    the   sentence    or     that   it   will   run

consecutively to the state sentences.                There was no error with

the Guidelines calculations or the twenty-year statutory maximum

sentence.       The district court understood the Guidelines were

advisory and that it was to consider the § 3553(a) sentencing

                                              4
factors.      The    court    imposed   a   consecutive     sentence   because

Mathis’ state convictions were unrelated to the drug conspiracy

and were not used as relevant conduct within the Guidelines’

calculations.       The court also noted that it agreed with all the

Government’s    arguments      in   favor    of   a   consecutive   sentence,

including the claim that if the sentence was to run concurrent,

he would have in essence received no prison time for the drug

conviction.

           Because we find no abuse of discretion in the twenty-

year sentence, we affirm the district court’s amended 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




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