                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4589


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

DEANTE DRAKE,

                  Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg.    Irene M. Keeley,
District Judge. (1:07-cr-00053-IMK-JSK-1)


Submitted:    February 27, 2009             Decided:   March 16, 2009


Before MICHAEL, MOTZ, and KING, Circuit Judges.


Dismissed in part; affirmed in part by unpublished per curiam
opinion.


Jane Moran, JANE MORAN LAW OFFICE, Williamson, West Virginia,
for Appellant.    Shawn Angus Morgan, Assistant United States
Attorney, Clarksburg, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Deante    Drake     appeals    the     292-month      sentence      imposed

following his guilty plea to conspiracy to possess with intent

to distribute and to distribute fifty grams or more of cocaine

base (“crack”), in violation of 21 U.S.C. §§ 841, 846 (2006).

The Government has moved to dismiss Drake’s appeal based upon a

waiver of appellate rights in his plea agreement.

            We conclude that Drake’s appeal of his sentence is

barred by his waiver of appellate rights, except for his claim

that his sentence was impermissibly based upon race.                             United

States    v.    Marin,      961    F.2d       493,     496      (4th    Cir.     1992).

Accordingly, we grant the motion to dismiss in part and dismiss

the appeal of the claims not based on race.                       We also deny the

motion to dismiss in part on the ground that Drake’s claim of

racial bias falls outside the scope of the waiver provision and

affirm the sentence.

            Turning    to   the    non-waived        issue,     Drake,    an    African

American,      contends     that   his        career      offender     sentence     was

unreasonable, both because his Caucasian co-defendants received

lighter   sentences       and   because       a   study    by   the    United   States

Sentencing Commission found that the career offender provision

has   a   disparate    impact      on    black       males.       We   find     Drake’s

arguments unpersuasive.



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               A district court must engage in a multi-step process

at   sentencing.          First,     it    must    calculate      the    appropriate

advisory Guidelines range.              It then must consider the resulting

range in conjunction with the factors set forth in 18 U.S.C.

§ 3553(a) (2006) and determine an appropriate sentence.                           Gall v.

United States, 128 S. Ct. 586, 596 (2007).                       Courts of appeal

review    a    sentence    for     reasonableness,        applying      an    abuse    of

discretion standard.         Id. at 597; United States v. Go, 517 F.3d

216, 218 (4th Cir. 2008).            In conducting this review, this court

must first determine that the district court did not commit any

     significant 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, 128 S. Ct. at 597.                  We then consider the substantive

reasonableness of the sentence, and may apply a presumption of

reasonableness to a within-Guidelines sentence.                   Go, 517 F.3d at

218; see Gall, 128 S. Ct. at 597.

              It   is   undisputed      that     Drake    qualified     as    a    career

offender and that the district court properly calculated the

advisory      Guidelines    range.          The    district      court       adequately

contemplated the § 3553(a) factors, the role Drake played in the

offense       in   comparison      to     that    of     his   co-defendants,         and


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considered      whether      to     impose     a    variance         sentence     before

ultimately     deciding    to      sentence    Drake    at     the    bottom     of   the

Guidelines range.         We find no evidence to support Drake’s claim

that his sentence impermissibly was based on race.                           See United

States v. Moore, 481 F.3d 1113, 1115 (8th Cir. 2007) (rejecting

challenge      to   career        offender     sentence      based      on      racially

disparate impact of career offender provision).

            For these reasons, we dismiss in part and affirm in

part.      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.

                                                                DISMISSED IN PART;
                                                                  AFFIRMED IN PART




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