                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-4469


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ROY CECIL RHODES, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (4:09-cr-00064-F-3)


Submitted:   March 28, 2011                   Decided:   May 20, 2011


Before MOTZ, KING, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Walter H. Paramore, III, WALTER H. PARAMORE, III, P.C.,
Jacksonville, North Carolina, for Appellant. George Edward Bell
Holding,   United  States  Attorney,   Jennifer P.  May-Parker,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Roy Cecil Rhodes, Jr., appeals his conviction and 169-

month sentence for one count of conspiracy to distribute and

possess    with     intent    to    distribute        more    than    fifty       grams   of

cocaine base in violation of 21 U.S.C. § 846 (2006), and one

count of distribution of five grams or more of cocaine base and

aiding    and     abetting    in     violation        of     21    U.S.C.    § 841(a)(1)

(2006), 18 U.S.C. § 2 (2006).                    Counsel has filed a brief in

accordance      with     Anders    v.    California,         386    U.S.    738     (1967),

certifying that there are no meritorious issues for appeal but

questioning whether the Fair Sentencing Act of 2010 should apply

to Rhodes’s sentence.             The Government has elected not to file a

brief.    Rhodes has filed a pro se supplemental brief.



     I.       Adequacy of the Rule 11 Hearing

              In the Anders context, we first review whether the

district court properly conduced its Fed. R. Civ. P. 11 colloquy

before accepting Rhodes’s guilty plea.                       Because Rhodes did not

move in the district court to withdraw his guilty plea, any

error    in   the   Rule     11    hearing       is   reviewed      for     plain   error.

United States v. Martinez, 277 F.3d 517, 525-26 (4th Cir. 2002).

To establish plain error, he “must show:                     (1) an error was made;

(2) the error is plain; and (3) the error affects substantial

rights.”        United    States    v.   Massenburg,          564    F.3d    337,   342-43

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(4th Cir. 2009)      (reviewing          unpreserved      Rule    11    error).         “The

decision     to    correct     the       error     lies    within       [this      court’s]

discretion, and [the court] exercise[s] that discretion only if

the error seriously affects the fairness, integrity or public

reputation    of    judicial        proceedings.”          Id.    at        343   (internal

quotation marks omitted).                 The defendant bears the burden of

showing plain error.

            We have reviewed the record, and we conclude that the

district court complied with the mandates of Rule 11.                             The court

ensured that Rhodes’s guilty plea was knowing, voluntary, and

supported by an adequate factual basis.                    Accordingly, we decline

to disturb Rhodes’s conviction.



     II.    Reasonableness of Sentence

            An      appellate            court      reviews       a     sentence         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.     First,      we     must    assess

whether the district court properly calculated the 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. at 49-50; see

United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010) (“[A]n

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individualized     explanation     must       accompany    every   sentence.”);

United    States   v.   Carter,    564       F.3d   325,   330   (4th Cir. 2009)

(same).    An extensive explanation is not required as long as the

appellate court is satisfied “‘that [the district court] has

considered the parties’ arguments and has a reasoned basis for

exercising [its] own legal decisionmaking authority.’”                    United

States v. Engle, 592 F.3d 495, 500 (4th Cir.) (quoting Rita v.

United States, 551 U.S. 338, 356 (2007)), cert. denied, 131 S.

Ct. 165 (2010).

            Because Rhodes did not ask for a sentence different

from that imposed, we review the procedural reasonableness of

his sentence for plain error.                See Lynn, 593 F.3d at 577-78.

Our review of the record reveals no such error.                    The district

court properly calculated the Guidelines range, heard arguments,

and offered an explanation for the sentence imposed.                   While the

explanation was not lengthy, the court clearly demonstrated that

it considered the parties’ arguments and created a proper record

for appellate review.

            Turning     to   the   substantive        reasonableness    of   the

sentence, we presume on appeal that a sentence within a properly

calculated Guidelines range is reasonable.                   United States v.

Allen, 491 F.3d 178, 193 (4th Cir. 2007).                  After reviewing the

record, we conclude that Rhodes has not rebutted the presumption

of reasonableness accorded his within-Guidelines sentence.

                                         4
     III. Fair Sentencing Act of 2010

           Finally, counsel questions whether Rhodes should have

received the benefit of the Fair Sentencing Act of 2010.                           This

argument was not raised in the district court, and we conclude

that it is waived.           In any event, however, we conclude that

Rhodes is not entitled to the benefit of the Fair Sentencing

Act, as his offense predates the effective date of the Act.                         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), cert.

denied, ___ U.S.L.W. ___ (U.S. Mar. 28, 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).

           Rhodes has filed a pro se supplemental brief raising a

similar   Fair     Sentencing   Act     claim,    as    well    as    a    claim     of

ineffective assistance of counsel, and claims that his sentence

violates Kimbrough      v.    United    States,   552    U.S.    85       (2007)    and

Furman v. Georgia, 408 U.S. 238 (1972).                  With respect to his

claim of ineffective assistance of counsel, we conclude that

ineffective assistance is not apparent on the face of the record

and the claim is accordingly not cognizable on direct appeal.

                                        5
With respect to his other claims, we conclude that they are

without merit.

            Finally, in accordance with Anders, we have reviewed

the   entire    record    and   have   found   no   meritorious   issues     for

appeal.    We therefore affirm the judgment of the district court.

This court requires that counsel inform his client, in writing,

of his right to petition the Supreme Court of the United States

for further review.        If the client 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 the client.              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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