                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-4728


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JAMES WESLEY SIDBURY,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:12-cr-00011-F-1)


Submitted:   June 12, 2013                 Decided:   June 28, 2013


Before MOTZ, KEENAN, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.   Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Joshua L. Rogers, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               James Wesley Sidbury pled guilty to four counts of

distribution       of    cocaine    base,         in    violation       of   21    U.S.C.A.

§ 841(a)(1) (West 2006 & Supp. 2013) (counts one through four),

one count of possession with intent to distribute cocaine base,

in violation of 21 U.S.C.A. § 841(a)(1) (count five), and one

count of possession of a firearm and ammunition by a convicted

felon,    in     violation    of    18    U.S.C.          §§ 922(g)(1),       924    (2006)

(count six).       The district court calculated Sidbury’s Guidelines

range    under     the    U.S.     Sentencing          Guidelines       Manual      (“USSG”)

(2011) at 121 to 151 months’ imprisonment on counts one through

five and 120 months’ imprisonment on count six, and sentenced

Sidbury    to    concurrent      terms    of        121    months’      imprisonment      on

counts one through five and 120 months’ imprisonment on count

six.     Sidbury appeals his sentences.                 We affirm.

               We review the sentence imposed by the district court

for     reasonableness       under       an        abuse-of-discretion             standard.

Gall v. United States, 552 U.S. 38, 41, 51 (2007).                            This review

entails     appellate      consideration           of     both    the    procedural      and

substantive       reasonableness         of        a    sentence.            Id.    at   51.

A sentence      imposed    within     the         properly       calculated       Guidelines

range is presumed reasonable by this Court.                             United States v.

Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010).                                  Such a

presumption is rebutted only by showing “that the sentence is

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unreasonable       when    measured        against         the    [18     U.S.C.]      § 3553(a)

[(2006)] factors.”              United States v. Montes-Pineda, 445 F.3d

375, 379 (4th Cir. 2006) (internal quotation marks omitted).

Sidbury    argues       that    the    district        court          committed    substantive

error by rejecting his argument that the 18:1 weight ratio of

cocaine base to powder cocaine in USSG § 2D1.1 is flawed because

the ratio is not based on empirical data, and by basing the

court’s    sentencing          decision     on      erroneous          policy     presumptions

about the prevalence of cocaine base and the ease with which it

is distributed.

            It     is     well-established             that       a    district       court   may

consider    policy-based         objections           to    the       Sentencing      Guidelines

and may vary from the Guidelines based on policy disagreements.

Spears     v.     United        States,         555        U.S.       261,     265-66     (2009)

(per curiam);       Kimbrough         v.   United          States,       552    U.S.    85,   91,

109-10 (2007).          However, “[a]lthough a sentencing court may be

entitled to consider policy decisions underlying the Guidelines,

including the presence or absence of empirical data, it is under

no   obligation      to    do    so.”       United          States      v.     Rivera-Santana,

668 F.3d     95,     101       (4th     Cir.)       (internal           citation       omitted),

cert. denied, 133 S. Ct. 274 (2012).                        Kimbrough does not require

appellate       courts     to    disagree        with       the       policy     underlying     a

Guideline.         United       States     v.    Talamantes,            620    F.3d    901,   902

(8th Cir. 2010) (per curiam).                   While “district courts certainly

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may   disagree    with      the    Guidelines           for    policy      reasons        and    may

adjust   a     sentence         accordingly[,] . . . . if                    they        do     not,

[appellate courts] will not second-guess their decisions under a

more lenient standard simply because the particular Guideline is

not   empirically-based.”              United       States         v.   Mondragon-Santiago,

564 F.3d 357, 367 (5th Cir. 2009).

             Here,        the     district         court       acknowledged             Sidbury’s

arguments     regarding          the    18:1        drug       weight       ratio,        but     it

ultimately    rejected          them    and       declined         to   impose      a    downward

variance.      After       reviewing        the     record,        we     conclude       that    the

district court did not abuse its discretion when it declined to

vary below the Guidelines range and sentence.

             Sidbury       fails       to    rebut       the       presumption          that     his

within-Guidelines           sentences             are    substantively              reasonable.

Accordingly,         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




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