                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-4392


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

KENNETH LEE GARDNER,

                Defendant – Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:09-cr-00063-MR-DCK-1)


Submitted:   July 28, 2011                 Decided:   August 5, 2011


Before SHEDD and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Andrew B. Banzhoff, DEVEREUX & BANZHOFF, PLLC, Asheville, 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Unpublished opinions are not binding precedent in this circuit.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:

             Pursuant       to    a    written       plea    agreement,      Kenneth       Lee

Gardner pled guilty to conspiracy to                        possess with intent to

distribute 500 grams of cocaine or less, in violation of 21

U.S.C. § 846 (2006).             He was sentenced to 120 months in prison.

Gardner    now     appeals.            His    attorney      has     filed    a    brief     in

accordance    with     Anders          v.    California,      386    U.S.    738    (1967),

questioning      whether     the       plea    was    voluntary      and    the    sentence

reasonable but stating that there are no meritorious issues for

appeal.     Gardner has filed a pro se brief raising an additional

issue.     We affirm.



                                               I

             After reviewing the transcript of Gardner’s Fed. R.

Crim. P. 11 proceeding, we conclude that the district court

fully    complied     with       the    Rule    and    that    the    guilty       plea    was

knowingly and voluntarily entered.                     Gardner was forty-six when

he entered his plea, had completed the eleventh grade and earned

a GED, and had attended classes to learn several trades.                             He had

not ingested alcohol or medication other than that prescribed

for his blood pressure and his mind was clear.                             He represented

to   the   court     that    he       had    discussed      his     case    and    his    plea

agreement     with     his       attorney,         with     whose    services       he     was

satisfied.

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            Gardner        understood       that    any     false    statement          might

subject him to a perjury prosecution.                       He also understood the

various trial rights he waived by pleading guilty, the elements

of the offense, the penalties to which he was subject, and the

applicability of the sentencing guidelines.                    Gardner agreed that

the United States’ summary of the plea agreement was accurate.

He told the court that his guilty plea was not the result of

threats, coercion or promises other than those contained in the

plea agreement.



                                             II

            Our review of the record convinces us that the 120-

month sentence is procedurally and substantive reasonable.                                See

Gall v. United States, 552 U.S. 38, 51 (2007).                              Gardner was

properly    found     to    be   a    career       offender,       with     a       resulting

advisory    Guidelines       range     of    151-188       months.        After       hearing

argument from counsel and Gardner, and considering the 18 U.S.C.

§ 3553(a)    (2006)    factors,        the    court    decided       that       a    downward

variance was warranted, especially in light of Gardner’s minor

role in the conspiracy and the fact that his career offender

status was based on convictions from 1988.                         The court made the

required    individualized           assessment       in    imposing      sentence        and

sufficiently    stated        its      reasons      for      the     chosen,          variant



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sentence.     See United States v. Carter, 564 F.3d 325, 328 (4th

Cir. 2009).



                                       III

            In his pro se brief, Gardner contends that, because

his Guidelines range was calculated based on his being a career

offender,    the   Government       breached   the    plea    agreement,    which

provided for a base level of 24.               He is incorrect.       The plea

agreement, which Gardner signed and which he represented to the

court that he understood, plainly stated                that base level 24

would apply but that if he were found to be a career offender,

his Guidelines range might be calculated based on that status.



                                       IV

            In accordance with Anders, we have reviewed the entire

record for meritorious issues and have found none.                 We therefore

affirm.     This court requires that counsel inform his client, in

writing,    of   his   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 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 was served on the client.                  We deny the motion

to disclose grand jury materials and dispense with oral argument

                                        4
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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