                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4788


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JARVARIS ANTWAN ANDREWS,

                Defendant – Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Senior District Judge. (1:08-cr-00144-NCT-1)


Submitted:   May 20, 2010                 Decided:   June 16, 2010


Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Robert L. McClellan, IVEY, MCCLELLAN, GATTON & TALCOTT, LLP,
Greensboro, North Carolina, for Appellant.      Terry Michael
Meinecke, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Pursuant to a written plea agreement, Jarvaris Antwan

Andrews pled guilty to distribution of cocaine base (crack) and

was sentenced to 131 months in prison.                    He now appeals.             His

attorney has filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), arguing that the district court should have

imposed   a    lower    sentence     because      of   the      federal       sentencing

guidelines’ disparate treatment of offenses involving crack and

those involving powder cocaine.                Andrews raises the same issue

in his pro se brief.         We affirm.

              Our   review   of   the    transcript       of    the       plea   colloquy

discloses      full     compliance       with     Fed.         R.     Crim.      P.   11.

Furthermore, the record reveals that Andrews entered his plea

voluntarily and knowingly and that there was a factual basis for

the plea. Finally, we have identified no meritorious appellate

issues related to the conviction.

              Turning to Andrews’ sentence, his advisory Guidelines

range was 262-327 months.           The district court granted the United

States’   Motion       for   Reduction    of     Sentence       based      on    Andrews’

substantial assistance and sentenced Andrews to 131 months in

prison. Andrews contends that the district court should have

imposed   an    even    lower     sentence      because    of       the    crack/powder

disparity.      He effectively is challenging, in light of Spears v.

United States, 129 S. Ct. 840 (2009), and Kimbrough v. United

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States, 552 U.S. 85 (2007), the district court’s application of

the mandatory crack-to-powder cocaine ratio that is incorporated

in the sentencing guidelines.            Because he raises this issue for

the first time on appeal, our review is for plain error.                               See

Fed. R. Crim. P. 52(b); United State v. Jeffers, 570 F.3d 557,

569    (4th    Cir.),   cert.     denied,    130   S.   Ct.      645    (2009).         To

establish       plain   error,     Andrews     “must      show    that        an     error

occurred, that the error was plain, and that it affected his

substantial rights.”          See id.

              Assuming without deciding that plain error occurred,

Andrews cannot establish that the error affected his substantial

rights.       We previously “concluded that the error of sentencing a

defendant       under   a    mandatory       guidelines     regime       is        neither

presumptively prejudicial nor structural” and that, to establish

that a plain error affected his substantial rights, a defendant

must    demonstrate     “actual     prejudice”     flowing       from    the        error.

United States v. White, 405 F.3d 208, 223 (4th Cir. 2005).                              To

make this showing, the defendant must demonstrate that the error

“affected the outcome of the district court proceedings.”                              Id.

In this regard, the crucial question is “whether the record as a

whole provides [a] nonspeculative basis for concluding that [the

sentencing error] affected the district court’s selection of the

sentence imposed.”          Id.



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               Here, the district court made no comment at sentencing

concerning       the    crack/powder             disparity.           It     would       be     only

speculation to conclude that the disparity in any way impacted

the court’s selection of the 131-month sentence.                                Accordingly,

there    was    no     plain   error.             We    further      find     that       Andrews’

sentence    was      procedurally          and    substantively        reasonable.               See

Gall v. United States, 552 U.S. 38, 51 (2007).                              In this regard,

the     district       court       properly          calculated       Andrews’           advisory

Guidelines        range,     applied        the        18    U.S.C.        § 3553(a)          (2006)

sentencing        factors,         and     adequately          explained       the        variant

sentence.      See id.

               We accordingly affirm.                  In accordance with Anders, we

have thoroughly reviewed the record for any 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,

counsel     may      move    this        court       for     leave    to      withdraw          from

representation.         Counsel’s motion must state that a copy of the

motion was served on the client.                       We dispense with oral argument

because the facts and legal contentions are adequately presented




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in the materials before the court and argument would not aid the

decisional process.

                                                        AFFIRMED




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