                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 08-5190


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

MARCUS NIKITA JENNINGS, a/k/a Marcus Jennings, a/k/a Marc
Jennings, a/k/a Mark Jennings,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg.  Norman K. Moon, District
Judge. (6:06-cr-00004-nkm-1)


Submitted:   April 29, 2010                   Decided:   May 3, 2010


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


Affirmed by unpublished per curiam opinion.


Larry W. Shelton, Federal Public Defender, Randy V. Cargill,
Assistant Federal Public Defender, Christine Madeleine Spurell,
Research and Writing Attorney, Roanoke, Virginia, for Appellant.
Ronald Andrew Bassford, Assistant United States Attorney,
Roanoke, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Marcus Nikita Jennings pled guilty, pursuant to a plea

agreement,    to   distribution          of   five     grams    or       more    of   cocaine

base, pursuant to 21 U.S.C. § 841(a)(1) (2006).                           The conditional

plea preserved Jennings’ right to appeal the district court’s

denial of his motion to suppress.                 Jennings was sentenced to 188

months’ imprisonment.             Jennings’ attorney has filed a brief in

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

certifying that there are no meritorious grounds for appeal, but

alleging   that    the     district       court      erred     in    denying      Jennings’

motion to suppress.             Although informed of his right to do so,

Jennings     has   not     filed     a     pro    se    supplemental            brief.   The

Government did not file a reply brief.                       Finding no reversible

error, we affirm.

             In reviewing the district court’s ruling on a motion

to suppress, we review the district court’s factual findings for

clear    error,    and    its     legal    determinations           de    novo.        United

States v. Cain, 524 F.3d 477, 481 (4th Cir. 2008).                                The facts

are reviewed in the light most favorable to the prevailing party

below.     United States v. Jamison, 509 F.3d 623, 628 (4th Cir.

2007).     With these standards in mind, and having reviewed the

transcript of the suppression hearing, we conclude the district

court did not err in denying Jennings’ motion to suppress.



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                 We review Jennings’ sentence for reasonableness under

an abuse of discretion standard. *                             Gall v. United States, 552

U.S.       38,        51    (2007).             This           review     requires      appellate

consideration              of        both      the        procedural          and     substantive

reasonableness of a sentence.                            Id.      In determining whether a

sentence         is    procedurally           reasonable,          this       court   must     first

assess      whether         the       district       court        properly        calculated     the

defendant’s           advisory        Guidelines         range.         Id.    at   49-50.      This

court then must consider whether the district court considered

the    factors         in       18    U.S.C.     §       3553(a)        (2006),     analyzed     the

arguments presented by the parties, and sufficiently explained

the selected sentence.                  Id.     “Regardless of whether the district

court imposes an above, below, or within-Guidelines sentence, it

must place on the record an ‘individualized assessment’ based on

the particular facts of the case before it.”                                   United States v.

Carter, 564 F.3d 325, 330 (4th Cir. 2009) (citation omitted).

                 Although the district court procedurally erred when it

imposed      Jennings’               sentence        without        explicitly        making      an


       *
       Though Jennings’ plea agreement contained an appeal waiver
in which Jennings agreed to waive his right to appeal his
sentence, the Government has failed to assert this waiver. See
United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007)
(where Anders brief is filed, “the [G]overnment is free to file
a responsive brief raising the waiver issue (if applicable) or
do nothing, allowing this court to perform the required Anders
review”).



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individualized       assessment       based       on     the    particular     facts       of

Jennings’    case,    because        Jennings      did    not     argue    below     for    a

sentence outside of his Guidelines range, we review the error

for plain error.         United States v. Lynn, 592 F.3d 572, 579-80

(4th Cir. 2010).         Even if we assumed that the district court’s

lack of explanation of Jennings’ sentence constituted an obvious

error in violation of Carter, Fed. R. Crim. P. 52(b) requires

Jennings     to   also     show      that    the       district     court’s     lack       of

explanation had a prejudicial effect on the sentence imposed.

See Puckett v. United States, 129 S. Ct. 1423, 1433 n.4 (2009).

We find Jennings has failed to make such a showing.                           We further

find Jennings’ sentence reasonable.                    See United States v. Allen,

491   F.3d   178,    193      (4th    Cir.       2007)    (recognizing       this    court

applies an appellate presumption of reasonableness to a within-

Guidelines sentence).

             In accordance with Anders, we have reviewed the record

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

We therefore affirm the district court’s judgment.                           This court

requires that counsel inform Jennings, in writing, of the right

to petition the Supreme Court of the United States for further

review.      If Jennings 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

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was served on Jennings.      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




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