                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4274


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JAMES O’BRIEN LACKARD,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
District Judge. (1:12-cr-00301-JAB-1)


Submitted:   December 13, 2013            Decided:   December 31, 2013


Before NIEMEYER, AGEE, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Gregory Stuart Smith, LAW OFFICES OF GREGORY S. SMITH,
Washington, D.C., for Appellant.     Ripley Rand, United States
Attorney, Sandra J. Hairston, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               James O’Brien Lackard appeals his 121-month sentence,

which   was     imposed    after      he    pled   guilty     pursuant    to    a   plea

agreement to one count of conspiracy to distribute heroin, in

violation of 21 U.S.C. § 846 (2012).                     Lackard asserts that his

sentence    is    both    procedurally       and    substantively      unreasonable,

and he asks that we remand his case to the district court so the

Government       may     consider     whether,        given   the    Department      of

Justice’s      recent    memoranda        regarding    charging     crimes     carrying

statutory mandatory minimum sentences, it wishes to again charge

him with the crime of which he was convicted.                     After considering

Lackard’s arguments, we affirm the district court’s judgment.

               We review a criminal sentence, “whether inside, just

outside,    or    significantly       outside      the    Guidelines     range,”     for

reasonableness,          “under       a     deferential        abuse-of-discretion

standard.”       United States v. King, 673 F.3d 274, 283 (4th Cir.),

cert. denied, ___ U.S. ___, 133 S. Ct. 216 (2012); see Gall v.

United States, 552 U.S. 38, 51 (2007).                    The first step in this

review requires us to ensure that the district court committed

no significant procedural error.                   United States v. Evans, 526

F.3d    155,     161    (4th   Cir.    2008).         Procedural    errors      include

“failing to calculate (or improperly calculating) the Guidelines

range, treating the Guidelines as mandatory, failing to consider

the [18 U.S.C.] § 3553(a) [(2012)] factors, selecting a sentence

                                             2
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 51.

              “[I]f a party repeats on appeal a claim of procedural

sentencing error like those at issue here, which it has made

before the district court, we review for abuse of discretion.

If we find such abuse, we reverse unless we conclude that the

error was harmless.”          United States v. Lynn, 592 F.3d 572, 576

(4th     Cir.    2010).      For    instance,         if     “an    aggrieved    party

sufficiently alerts the district court of its responsibility to

render an individualized explanation” by drawing arguments from

§ 3553    “for     a    sentence   different          than    the    one   ultimately

imposed,” the party sufficiently “preserves its claim.”                         Id. at

578.     However, we review unpreserved non-structural sentencing

errors for plain error.            Id. at 576–77.            If, and only if, we

find the sentence procedurally reasonable can we consider the

substantive       reasonableness      of    the   sentence         imposed.     United

States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009).                            Because

Lackard requested a sentence different than the one ultimately

imposed by the district court, we review his sentence for abuse

of discretion.         King, 673 F.3d at 283.

              Lackard’s    arguments       to   the    contrary,      we   discern   no

procedural sentencing error by the district court.                            Although

Lackard asserts that the district court erred when it denied his

                                           3
request for a downward departure because he argues the district

court erroneously combined the substantive contours applicable

to his requests for a departure and variant sentence, the record

does not support this argument.                   Rather, the record establishes

that   the     district    court      considered         what       it    was   required    to

consider in determining whether a departure was warranted and

there is no indication that the district court misunderstood its

authority      to    depart.        See    U.S.    Sentencing            Guidelines    Manual

(“USSG”)      § 5H1.6,     p.s.      (2012)       (“In       sentencing         a   defendant

convicted of an offense other than an offense [not at issue on

this     appeal],       family      ties     and     responsibilities               are    not

ordinarily relevant in determining whether a departure may be

warranted.”); see also Gall, 552 U.S. at 49-50 (holding that

although “the Guidelines should be the starting point and the

initial       benchmark”       of   calculating          a    proper          sentence,    the

district      court    “should       then    consider         all        of   the   § 3553(a)

factors to determine whether they support the sentence requested

by a party”); United States v. Brewer, 520 F.3d 367, 371 (4th

Cir. 2008)          (holding that this court “lack[s] the authority to

review    a    sentencing       court’s     denial       of     a    downward       departure

unless the court failed to understand its authority to do so”).

              Although Lackard also asserts that the district court

erred because it allegedly never considered whether a one-month

departure      was    appropriate,        Lackard    primarily            and   specifically

                                             4
asked the district court to consider allowing him to stay at

home to care for his children rather than receive prison time.

Although defense counsel eventually asked for “some level of

departure[,]”      the   record       confirms          that    the     district       court

carefully       considered     this      request        but     determined          that   no

departure was warranted and that a 121-month sentence was an

adequate sentence.

            Because Lackard’s 121-month sentence was the bottom of

his   Guidelines      range,    we    presume      on    appeal       that    the    within-

Guidelines sentence is reasonable.                      United States v. Mendoza-

Mendoza, 597 F.3d 212, 217 (4th Cir. 2010) (“[W]e may and do

treat on appeal a district court’s decision to impose a sentence

within the Guidelines range as presumptively reasonable.”).                                In

an    attempt    to    rebut    the    presumption             afforded      his     within-

Guidelines      sentence,      Lackard      argues      that     the    district       court

erred when it determined that Lackard’s care for his disabled

son had to be “irreplaceable” before Lackard could qualify for a

downward     departure       under     USSG       § 5H1.6.            Although       Lackard

acknowledges that this was the standard employed by this court

before United States v. Booker, 543 U.S. 220 (2005), Lackard

suggests that the continuing viability of this standard is in

“doubt post-Booker.”

            Lackard’s     suggestion         to    the    contrary,          however,      the

Guidelines      are    still     to    be       considered       in     determining         an

                                            5
appropriate sentence.               See Gall, 552 U.S. at 49 (“As a matter of

administration        and       to     secure        nationwide         consistency,         the

Guidelines     should          be     the    starting      point        and     the   initial

benchmark.”).             In        addition,        because      the     district         court

specifically addressed several § 3553(a) factors before imposing

Lackard’s sentence and explicitly tied them to Lackard’s case,

we find that Lackard has failed to rebut the presumption of

reasonableness       afforded         his     within-Guidelines           sentence.         See

United   States      v.   Montes-Pineda,             445   F.3d    375,       379   (4th    Cir.

2006)    (“A    defendant            can     only      rebut      the     presumption         by

demonstrating that the sentence is unreasonable when measured

against the § 3553(a) factors.”) (brackets omitted).

            Lackard finally asks that we remand his case to the

district court so that the Government may determine whether it

would again charge him with a crime carrying a mandatory minimum

sentence under the U.S. Department of Justice’s new policy on

charging such crimes.                Other than his summary assertion that a

remand for reconsideration “would only be fair” because his case

is not yet final, Lackard presents no evidence to establish that

the Government’s failure to apply its new policy in this case

would violate his equal protection rights.                        See United States v.

Armstrong,     517    U.S.      456,       464   (1996)    (holding       that      given    the

broad    discretion       afforded          federal    prosecutors        to    enforce      the

United States’ criminal laws, “in the absence of clear evidence

                                                 6
to the contrary, courts presume that [federal prosecutors] have

properly discharged their official duties”) (internal quotation

marks, brackets and citation omitted); United States v. Chemical

Found., 272 U.S. 1, 14–15 (1926) (holding that to dispel the

presumption that a prosecutor has not violated equal protection,

a   criminal    defendant     must   present      “clear     evidence    to   the

contrary”).      Accordingly, we refuse Lackard’s request to remand

this case.

            Based on the foregoing, we affirm the district court’s

judgment.      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




                                      7
