                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-4665


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

DERRICK LEWIS, a/k/a Chip, a/k/a Ski, a/k/a Mark Jones,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.  Robert C. Chambers,
Chief District Judge. (3:11-cr-00201-1)


Submitted:   March 8, 2013                 Decided:   April 5, 2013


Before DAVIS and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


John H. Tinney, Jr., THE TINNEY LAW FIRM, PLLC, Charleston, West
Virginia, for Appellant. R. Booth Goodwin II, United States
Attorney, R. Gregory McVey, Assistant United States Attorney,
Huntington, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Derrick Lewis appeals his sentence imposed after he

pleaded     guilty       to   possession             with    intent     to     distribute      a

quantity     of        oxycodone     and     a       quantity     of    oxymorphone,          in

violation of 21 U.S.C. § 841(a)(1) (2006).                              On appeal, Lewis

argues     that    the     U.S.    Sentencing          Guidelines       Drug     Equivalency

Table’s     conversion         rate     of       oxycodone        and    oxymorphone           to

marijuana         is     arbitrary,          excessive,           and        causes     unjust

disparities.       Finding no error, we affirm.

             At sentencing, defense counsel presented his position

on   the    disparity         between      the        drug    equivalency        table        for

oxycodone and oxymorphone and other scheduled drugs.                                  See U.S.

Sentencing Guidelines Manual § 2D1.1(a)(3), (c) (2011).                                Counsel

asked the court “to employ . . . a lower standard . . . and use

that equivalency rate as the rate by which the conversion should

be established.”           The court heard argument from Lewis and the

Government and denied Lewis’s request for a downward variance.

The court gave extensive reasoning supporting its decision to

deny the variance request and sentenced Lewis to 92 months—the

bottom of the Guidelines range.

             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 inspect

the sentence for procedural reasonableness by ensuring that the

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district court committed no significant procedural errors, such

as     improperly     calculating      the     Sentencing       Guidelines    range,

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

failing to adequately explain the sentence.                      United States v.

Boulware,     604    F.3d    832,    837-38      (4th    Cir.   2010).       We    then

consider the substantive reasonableness of the sentence imposed,

taking into account the totality of the circumstances.                            Gall,

552 U.S. at 51.        If the sentence is within the Guidelines range,

this court presumes on appeal that the sentence is reasonable.

United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008); see

Rita v. United States, 551 U.S. 338, 346-56 (2007) (permitting

appellate     presumption     of     reasonableness       for    within-Guidelines

sentence).

             The only issue Lewis raises on appeal is whether the

marijuana equivalent for oxycodone and oxymorphone, as amended

by Amendment 657, is arbitrary, excessive, and causes unjust

sentencing     disparities.          Amendment     657    changed   the    marijuana

equivalent for oxycodone in two respects.                   First, it based the

equivalent on the amount of actual oxycodone involved rather

than    on   the    gross   weight    of   the    pills   containing      oxycodone.

Second, it made one gram of oxycodone equivalent to 6700 grams

of marijuana, rather than one gram of pill weight equivalent to

500 grams of marijuana.              It also made one gram of oxymorphone



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equivalent to 5000 grams of marijuana.                      See USSG, App. C, vol.

II.

              Lewis argues that the conversion rates for oxycodone

and oxymorphone are arbitrary and are not based upon scientific

study or empirical data.                He contends that these drugs should

not be treated more severely than heroin.                         He argues that this

unsupported      distinction          violates      his    due    process       rights   and

conflicts      with    18     U.S.C.       § 3553(a)(6)’s        admonition       to   avoid

“unwarranted sentence disparities among defendants with similar

records who have been found guilty of similar conduct.”                                  Id.

The     Government         responds     that       the    district       court     properly

calculated Lewis’s sentence and that it is reasonable.                                 As to

the drug equivalency argument, the Government notes that Lewis’s

argument      that    the     conversion       formula      creates      an     unwarranted

disparity     when     compared       to    other    opiates      is     flawed.       Lewis

attempts to compare equal drug weights of different drugs and

then note the disparity in their marijuana equivalency.                                  For

instance,      one    gram     of     morphine       converts       to    500    grams    of

marijuana, far less than the conversion rate of oxymorphone or

oxycodone.      However, the entire weight of morphine is used to

calculate quantity and only the active ingredient in oxymorphone

and   oxycodone       is    used.      Therefore,         the    conversion      rates   are

based    on    different       factors       and    do     not    lend    themselves      to

mathematical comparison.

                                               4
              Lewis argues that no empirical data or studies exist

to support the harsh treatment of prescription drugs.                    However,

the Government points the court to an article published by the

President’s Office of National Drug Control Policy (ONDCP).                   The

article   states    that   the    “Centers     for     Disease    Control    and

Prevention [(CDC)] has classified prescription drug abuse as an

epidemic.”      The article indicates that “data from the National

Survey on Drug Use and Health (NSDUH) show that nearly one-third

of people aged 12 and over who used drugs for the first time in

2009 began by using a prescription drug non-medically.”                       The

article   continues     that     individuals     who     use     these    drugs,

particularly teenagers, believe the drugs are safer than illicit

drugs because they require a prescription that is filled at a

pharmacy. 1    The ONDCP article also referenced a study by the CDC

that compared unintentional overdose deaths involving opioids,

cocaine, and heroin in the United States between 1999 and 2007. 2

During that time period, deaths from opioids rose from 3000 in




     1
       Available at http://www.whitehouse.gov/ondcp/prescription-
drug-abuse.
     2
       These statistics come from the CDC’s Unintentional Drug
Poisoning in the United States (July 2010), available at:
http://www.cdc.gov/HomelandRecreationalSafety/pdf/poison-issue-
brief.pdf.



                                     5
1999 to almost 12,000 in 2007. 3                The article and study provide

empirical       justification      for    the    drug     equivalency      table   and

demonstrate that its distinctions are not arbitrary and do not

cause unwanted sentencing disparities.

               At sentencing, the court enumerated its reasons for

following       the   drug   equivalency         table.      These    included     the

assumed safety of taking a prescription drug and the rise of

distribution of oxycodone, particularly in the local community.

These statements are supported by the policy article and studies

cited by the Government. The court recognized its discretion to

vary and declined to exercise it.                  Lewis was sentenced within

the Guidelines range, at the lowest end, and he has not rebutted

the presumption that his sentence is reasonable.

               We therefore affirm the judgment.                  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




       3
       Oxycodone and oxymorphone are both defined as opiates.
See USSG § 2D1.1, comment. (n.10(D)).



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