                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4274


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOHMAR MONTE GALLOWAY, a/k/a Nutso,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.  Louise W. Flanagan,
District Judge. (7:11-cr-00106-FL-1)


Submitted:   October 10, 2012             Decided:   October 17, 2012


Before SHEDD, DUNCAN, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


J. Merritt Wagoner, SULLIVAN & WAGONER, LLP, Wilmington, North
Carolina, for Appellant.     Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Johmar         Monte       Galloway            appeals         his     sentence       after

pleading        guilty       to       conspiracy            to    possess         with      intent      to

distribute and to distribute heroin in violation of 21 U.S.C.

§§ 841(a)(1), 846 (2006), possession with intent to distribute

heroin     in     violation           of   21    U.S.C.           § 841(a)(1)            (2006),       and

possession of a firearm after having been convicted of a crime

punishable       by    imprisonment           for       a    term         exceeding      one    year    in

violation of 18 U.S.C. §§ 922(g)(1), 924 (2006).                                            Galloway’s

attorney has filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), asserting, in counsel’s opinion, that there are

no   meritorious           grounds      for     appeal,          but       raising    the      issue    of

whether the district court erred by denying Galloway federal

benefits     for      five     years       pursuant          to   21       U.S.C.     § 862     (2006).

Galloway was notified of his right to file a pro se supplemental

brief but has not done so.                  We affirm.

             We       review      a    sentence         under         a    deferential         abuse-of-

discretion standard.                  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,    such        as    improperly        calculating                 the   Guidelines       range,

failing to consider the 18 U.S.C. § 3553(a) (2006) factors, or

failing to adequately explain the sentence.                                       United States v.

Carter, 564 F.3d 325, 328 (4th Cir. 2009).                                      If the sentence is

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procedurally       reasonable,         we      then       consider     the     substantive

reasonableness of the sentence imposed, taking into account the

totality    of    the       circumstances.           Gall,    552     U.S.    at   51.         We

presume that a sentence within or below a properly calculated

Guidelines range is substantively reasonable.                          United States v.

Susi, 674 F.3d 278, 289 (4th Cir. 2012).

            The district court determined that Galloway would be

ineligible for federal benefits for five years under 21 U.S.C.

§ 862(b)(1)(B) (2006).             On appeal, he argues that the penalties

under the statute are inapplicable to him pursuant to 21 U.S.C.

§ 862(e) (2006) because he pled guilty.                       However, that provision

applies to “Government witnesses” and includes “any individual

who    cooperates           or   testifies         with     the     Government       in    the

prosecution       of    a    Federal      or   State       offense    or     who   is     in   a

Government witness protection program.”                        Id.     We have reviewed

the record and conclude that the district court did not err or

abuse its discretion in denying Galloway these benefits.

            In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.      We    therefore        affirm       the      district    court’s      judgment.

This court requires that counsel inform his or her client, in

writing, of his or her 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

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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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