                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4708


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

THOMAS OTIS MACKEY, a/k/a Miami,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Greenville.     J. Michelle Childs, District
Judge. (6:10-cr-00421-JMC-1)


Submitted:   February 5, 2013             Decided:   February 8, 2013


Before WILKINSON and    GREGORY,   Circuit   Judges,   and   HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


James B. Loggins, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant.     Alan Lance Crick, Assistant
United   States  Attorney,  Greenville,   South  Carolina,   for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Thomas Otis Mackey appeals his conviction and sixty-

month sentence imposed after remand.                  Mackey pled guilty without

the benefit of a plea agreement to one count of conspiracy to

possess with intent to distribute fifty grams or more of crack

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

1999 & Supp. 2012).             Counsel has filed a brief pursuant to

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

are     no    meritorious       issues    but        raising      for   the   court’s

consideration whether the district court erred by ordering the

statutory      minimum       sentence.        Mackey        was   informed    of    the

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

Government did not file a brief.              Finding no error, we affirm.

              We have reviewed the Rule 11 hearing and conclude that

there was no error when the district court accepted Mackey’s

guilty plea.      Accordingly, we affirm the conviction.

              We have reviewed the sentence and conclude there was

no error.       Mackey was sentenced in accordance with the Fair

Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220, 124 Stat.

2372.        Under   the     FSA,   the   statutory         minimum     sentence    for

Mackey’s offense was five years’ imprisonment.                          The district

court could not impose a sentence below that statutory minimum

sentence     without     a   motion   filed     by    the    Government.      See    18

U.S.C. § 3553(e) (2006); see also Melendez v. United States, 518

                                          2
U.S. 120, 125-30 (1996).          Because the Government did not move

for a lower sentence, and we note there was no agreement to do

so, the court properly found it could not impose a sentence

below the statutory minimum sentence.

            In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal.

We   therefore    affirm   Mackey’s   conviction    and    sentence.       This

court requires that counsel inform Mackey, in writing, of the

right to petition the Supreme Court of the United States for

further review.        If Mackey 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

was served on Mackey.

            We dispense with oral argument because the facts and

legal    contentions     are   adequately   presented     in   the   materials

before   this    court   and   argument   would   not   aid    the   decisional

process.

                                                                       AFFIRMED




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