                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4439


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RANDOLPH HARRIS AUSTIN,      a/k/a   Randolph   Harris,   a/k/a
Matarbus Raynard Fewell,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., District Judge. (3:05-cr-00213-RJC-DCK-1)


Submitted:   December 22, 2014            Decided:   January 6, 2015


Before SHEDD, DUNCAN, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Ross Hall Richardson, Executive Director, Ann L. Hester, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, for Appellant.    Amy Elizabeth Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              In 2006, a jury convicted Randolph Harris Austin of

conspiracy to possess with intent to distribute fifty grams or

more of cocaine base and five hundred grams or more of cocaine,

21 U.S.C. §§ 841(b)(1)(A), 846 (2012) (Count One), and attempt

to possess with intent to distribute cocaine, 18 U.S.C. § 2

(2012), 21 U.S.C. § 841(a) (2012) (Count Two).                             The Government

filed an information pursuant to 21 U.S.C. § 851 (2012) based on

Austin’s         prior     North    Carolina         drug    convictions.         He    was

sentenced as a career offender to life imprisonment on Count

One,    and       360     months’    imprisonment           on    Count    Two,   to    run

concurrently.            This court affirmed on appeal.                  United States v.

Austin, 347 F. App’x 945 (4th Cir. 2009).

              In 2011, Austin moved to vacate his sentence pursuant

to 28 U.S.C. § 2255 (2012), arguing inter alia that he was

improperly sentenced in light of our decision in United States

v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), because he

did    not    have       the   requisite    qualifying           prior    convictions    to

trigger      a     mandatory       life   sentence          or   the     career   offender

designation.         The district court granted the motion with regard

to the Simmons issue and ordered resentencing.

              At     resentencing,        the       district     court    concluded    that

Austin did not qualify for the enhanced sentence under § 851 or

the career offender designation.                       The court further sustained

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Austin’s        objections         to       three       criminal     history        points,       as

calculated in the original PSR, assigned to convictions that

were consolidated for sentencing.                          See United States v. Davis,

720     F.3d    215     (4th       Cir.       2013)       (holding        that    “consolidated

sentence” or “consolidated judgment” under North Carolina law is

single sentence for Guidelines purposes).                                 The district court

calculated a revised Guidelines range of 110 to 137 months in

prison    based       on     a    total       offense      level     of    twenty-six       and    a

criminal history of twelve points, category V.                                     The district

court ultimately denied Austin’s motion for a downward variance.

The court noted Austin’s significant criminal history and, after

expressly considering the various 18 U.S.C. § 3553(a) (2012)

factors    and       providing         an     individualized        assessment,       sentenced

Austin within the Guidelines range to 132 months in prison.

               On appeal, Austin’s counsel has filed a brief pursuant

to Anders v. California, 386 U.S. 738 (1967), certifying that

there    are     no    meritorious            grounds      for     appeal    but    questioning

whether        the    district          court       erred     in     calculating          Austin’s

criminal history points.                    Although informed of his right to do

so, Austin has not filed a pro se supplemental brief.                                          The

Government declined to file a response.

               We review Austin’s sentence for reasonableness “under

a   deferential        abuse-of-discretion                standard.”         Gall     v.    United

States,    552        U.S.       38,    41,    51       (2007).      This        review    entails

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appellate consideration of both the procedural and substantive

reasonableness      of     the    sentence.          Id. at    51.       In   determining

procedural       reasonableness,         we       consider    whether     the     district

court    properly       calculated      the   defendant’s          advisory     Guidelines

range,     gave    the     parties      an        opportunity       to   argue    for   an

appropriate       sentence,          considered       the     18     U.S.C.      § 3553(a)

factors,    selected       a     sentence     based     on     facts     that    were   not

clearly     erroneous,         and    sufficiently          explained     the     selected

sentence.     Id. at 49-51.

            If    the     sentence      is    free    of     “significant       procedural

error,” we review it for substantive reasonableness, “tak[ing]

into account the totality of the circumstances.”                              Id. at 51.

Any sentence within or below a properly calculated Guidelines

range is presumptively substantively reasonable.                          United States

v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014), cert. denied,

135 S. Ct. 421 (2014); United States v. Susi, 674 F.3d 278, 289-

90 (4th Cir. 2012).            Such a presumption can only be rebutted by

a   showing      that    the     sentence      is    unreasonable        when    measured

against the § 3553(a) factors.                Louthian, 756 F.3d at 306.

            Because Austin did not object to the disputed criminal

history points, our review is limited to plain error.                              United

States v. Hamilton, 701 F.3d 404, 410 (4th Cir. 2012).                                  To

establish plain error, a defendant must show that “(1) there is

an error, (2) the error is plain, and (3) the error affects

                                              4
substantial rights.”                  Henderson v. United States, 133 S. Ct.

1121,    1126       (2013)          (internal      quotation         marks    and    alteration

omitted).

               Austin’s counsel argues that, while the district court

properly     removed           at    resentencing         criminal        history    points    for

three North Carolina prior convictions that were consolidated at

sentencing,         it       overlooked        other    consolidated         convictions      that

were    also      counted        in      violation       of    Davis.        Specifically,     he

directs our attention to Austin’s March 25, 1997 conviction for

driving      with        a    revoked      license       which      was    consolidated       with

another      conviction             at     sentencing         and    therefore       improperly

assessed a criminal history point.                            The second group consisted

of May 25, 2004 convictions for driving with a revoked license,

assault      on     a    female,         and    resisting       an    officer,       which    were

consolidated with another conviction for driving with a revoked

license.       This second group was assessed a total of four points

when, under Davis, it should have received only one.

               We       agree       that    these       four     points      were     improperly

included       in       Austin’s         revised        criminal     history        calculation.

While this constitutes error, we conclude that Austin cannot

demonstrate         the       error      affected       his   substantial       rights,      which

entails showing that the error actually affected the outcome of

the proceedings, i.e., that his “sentence was longer than that

to   which     he       would       otherwise      be    subject.”          United    States    v.

                                                   5
Angle,    254     F.3d   514,   518    (4th      Cir.    2001).       Austin    has    not

established that, due to the Davis error, his Guidelines range

would    have     been   lower      had    the    consolidated         sentences      been

counted as single sentences.

            In the original PSR, the probation officer calculated

a total of eighteen criminal history points.                         This in fact was

the result of an arithmetical mistake, as the points totaled

twenty-three.        While the district court at resentencing reduced

the     overall    criminal      history        points,    it       started    with   the

incorrectly calculated base of eighteen points as reported in

the original PSR.           The original miscalculation benefitted Austin

with a five-point reduction.               Hence, the four-point Davis error

raised on appeal is insufficient to affect Austin’s substantial

rights.     Austin would have a total of thirteen criminal history

points but for the court’s addition in his favor.                             Based on a

correctly calculated criminal history score of thirteen points

and an offense level of twenty-six, Austin’s Guidelines range

would have been 120 to 150 months in prison.                          U.S. Sentencing

Guidelines        Manual,     ch.     5,   pt.     A     (2013).        Because       this

miscalculation       caused     the    court     to     apply   a    lower    Guidelines




                                            6
range than was warranted, Austin cannot show the error affected

his substantial rights. *

            In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal.

We therefore affirm the amended judgment.                  This court requires

that counsel inform Austin, in writing, of the right to petition

the Supreme Court of the United States for further review.                     If

Austin requests that a petition be filed, but counsel believes

that such a 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

Austin.     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




     *
       See Greenlaw v. United States, 554 U.S. 237, 243-49 (2008)
(holding that, in the absence of a Government cross-appeal, an
appellate court may not sua sponte correct a district court
error if the correction would be to the defendant’s detriment).



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