                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4260


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

ORENTHAL JAMES DENDY,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry F. Floyd, District Judge.
(6:09-cr-00565-HFF-1)


Argued:   May 10, 2011                    Decided:   July 14, 2011


Before TRAXLER, Chief Judge, and AGEE and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: David Wilson Plowden, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenville, South Carolina, for Appellant.    William
Jacob Watkins, Jr., OFFICE OF THE UNITED STATES ATTORNEY,
Greenville, South Carolina, for Appellee. ON BRIEF: William N.
Nettles, United States Attorney, Columbia, South Carolina, A.
Lance Crick, Assistant United States Attorney, OFFICE OF THE
UNITED   STATES  ATTORNEY,  Greenville,  South  Carolina,   for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Orenthal James Dendy appeals his sentence for possession

with intent to distribute and distribution of crack cocaine and

for use of a firearm in furtherance of a drug trafficking crime.

He argues that the district court inadequately explained its

reasons for imposing a sentence within the guidelines range and

rejecting his arguments for a lesser sentence.                    He also contends

that   his   sentencing      hearing    was       tainted   by   a     statement      the

district court made regarding our guidelines precedent.                        Finding

no error, we affirm.



                                         I.

       On several occasions in 2008, Dendy sold crack cocaine to a

confidential       informant    working       for    the    Simpsonville,           South

Carolina police department.            On the basis of these transactions,

the police obtained and executed a search warrant for Dendy’s

residence.          The      search     revealed        crack         cocaine,      drug

paraphernalia, a firearm, and ammunition.                   A federal grand jury

returned a five-count indictment against Dendy; he subsequently

pleaded guilty to Counts One and Five.                 Count One charged Dendy

with   possessing     with     intent    to       distribute     and    distributing

cocaine   base     (crack    cocaine),       in    violation     of    21    U.S.C.    §§

841(a)(1)    and    841(b)(1)(C).         Count      Five   charged         Dendy   with



                                         2
knowingly using and carrying a firearm in furtherance of a drug

trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A).

     The United States Probation Office prepared a presentence

report    (“PSR”),       which    calculated           Dendy’s      sentence     under    the

guidelines as a range of 21 to 27 months’ imprisonment for Count

One, based upon a total offense level of 15 and a criminal

history category of II, plus a mandatory consecutive 60 months’

imprisonment for Count Five.                    The PSR also described Dendy’s

personal    characteristics             in     some     detail.         The     description

included         specific         information               about      Dendy’s       family

relationships;       physical          condition;        mental       health,    including

details    about    his     mental      illness        diagnosis,      medications,        and

treatment; substance abuse history; vocational and nonvocational

education; employment record; and financial circumstances.

     At     sentencing,            the         district        court       recited         the

recommendations of the PSR regarding the applicable guidelines

range.     After     verifying          that    neither       party     objected     to   the

contents   of     the    PSR,     the       district    court       adopted    the   factual

findings    of    the    PSR     as     a    basis     to    evaluate    the    sentencing

factors of 18 U.S.C. § 3553(a).                    Both the government and defense

counsel presented sentencing arguments.                         The government argued

for a within-guidelines sentence, while counsel for Dendy asked

the district court to impose a total sentence of 60 months’

imprisonment.           Because       the    mandatory       minimum     for    Count     Five

                                               3
required a sentence of 60 months, Dendy’s request in reality

constituted a request for a downward variance (to zero) from the

21 to 27 months guideline range for Count One.

     In    support     of   this       request,    defense      counsel    pointed       to

Dendy’s relatively light criminal history (as already reflected

in the PSR) and asked the court to consider, as grounds for the

variance,    the     sentencing        disparity    between      crack     cocaine      and

powder cocaine, Dendy’s mental illness, and Dendy’s inability to

maintain    employment      as     a    result     of    that   illness.       Dendy’s

counsel argued that Dendy was selling crack not to support his

own use, but rather to earn money to help offset his parents’

support    of   him    during      his    unemployment.            Based   upon    these

considerations, defense counsel argued that a sentence of 60

months would accomplish the goals of sentencing as expressed in

the § 3553(a) factors.             Thereafter, both Dendy and his father

made oral statements in which they underscored the hardships

associated      with   Dendy’s     mental       illness,     particularly      Dendy’s

difficulty keeping a job and his resulting financial troubles.

     After hearing the respective arguments by the parties, the

district     court     explicitly        rejected        Dendy’s     request      for    a

downward variance based upon the sentencing disparity between

crack cocaine and powder cocaine.                   The district court reasoned

that in its view, crack is a more dangerous drug than powder

cocaine.        With   regard      to     Dendy’s       remaining    arguments,         the

                                            4
district court explicitly agreed with the government’s analysis

of the relevant § 3553(a) factors.             The district court sentenced

Dendy to 21 months for Count One, which was the bottom of the

guidelines range, plus the mandatory consecutive sentence of 60

months for Count Five, for a total sentence of 81 months.



                                        II.

      A    distinct     sentencing     framework     has    emerged      from    the

Supreme    Court’s     sentencing      decisions    since    United     States    v.

Booker, 543 U.S. 220 (2005), the decision in which the Court

rendered     the      once-mandatory      federal    sentencing         guidelines

advisory.     See, e.g., Gall v. United States, 552 U.S. 38, 46-60

(2007); Rita v. United States, 551 U.S. 338, 347-60 (2007).                      The

framework imposes specific procedural requirements upon district

courts for the sentencing of criminal defendants.                  A sentencing

court must begin its determination by correctly calculating the

defendant’s sentencing range under the guidelines, which is the

proper    “starting     point    and    the   initial      benchmark”     for    the

court’s decision.        Gall, 552 U.S. at 49.          Thereafter, the court

must allow the parties to argue for whatever sentence they deem

appropriate    and      consider     their    arguments     in   light     of    the

sentencing factors set forth in § 3553 (a).                  See id. at 49-50.

The   court     must      then     choose     a    sentence      based     on     an

“individualized assessment” of the facts presented.                   Id. at 50.

                                         5
After    selecting      the     appropriate          sentence,     the    court     must

“adequately explain the chosen sentence.”                        Id.     See also 18

U.S.C. § 3553(c) (requiring sentencing courts to “state in open

court” their reasons for imposing a particular sentence).                           Apart

from    these    procedural      requirements,         a   district      court     enjoys

“substantial discretion” in selecting a sentence.                        United States

v. Raby, 575 F.3d 376, 381 (4th Cir. 2009).

       Under    this    sentencing       framework,        we    review     sentencing

determinations for reasonableness under an abuse-of-discretion

standard.       Gall, 552 U.S. at 51.                 Our reasonableness review

involves both procedural and substantive elements.                          Procedural

reasonableness—the sole issue here—concerns the method by which

the     district      court     decided        the    defendant’s        sentence;     a

sentencing determination that does not conform to the procedural

requirements         outlined    above     is        procedurally        unreasonable.

Accordingly, our review requires us to ensure that the district

court

       committed no significant procedural error, such as
       failing to calculate (or improperly calculating) the
       Guidelines   range,   treating    the   Guidelines    as
       mandatory, failing to consider the § 3553(a) factors,
       selecting a sentence based on clearly erroneous facts,
       or failing to adequately explain the chosen sentence.

Id.      If     we   find     that   the   district        court       committed    such

procedural error, and thus abused its discretion, we reverse




                                           6
unless we determine that the error was harmless. *              See United

States v. Boulware, 604 F.3d 832, 838 (4th Cir. 2010); United

States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010).



                                 III.

     Dendy   first   contends   that   the   district   court    committed

procedural error by failing to adequately explain the within-

guidelines sentence it imposed upon him.       We disagree.

     When imposing a sentence, a district court “must make an

individualized assessment based on the facts presented.”             Gall,

552 U.S. at 50; see also Lynn, 592 F.3d at 576; United States v.

Carter, 564 F.3d 325, 330 (4th Cir. 2009).          The district court

must also provide an explanation for the sentence it imposes.

See 18 U.S.C. § 3553(c).    “The sentencing judge should set forth

enough to satisfy the appellate court that he has considered the

parties’ arguments and has a reasoned basis for exercising his

own legal decisionmaking authority.”          Rita, 551 U.S. at 356.

“This not only ‘allow[s] for meaningful appellate review’ but it

also ‘promote[s] the perception of fair sentencing.’”              Carter,

564 F.3d at 328 (quoting Gall, 552 U.S. at 50).         Furthermore, if

     *
       Because Dendy argued at sentencing that the § 3553(a)
factors warranted a sentence below the applicable guidelines
range, his claim of procedural error is properly preserved for
appellate review. See United States v. Lynn, 592 F.3d 572, 578-
79 (4th Cir. 2010).



                                   7
a   party    presents      legitimate      reasons       for    imposing       a   sentence

outside the applicable guidelines range, the sentencing judge

“will normally go further and explain why he has rejected those

arguments.”       Rita, 551 U.S. at 357; see Carter, 564 F.3d at 328.

       Although      an    adequate     explanation           must     accompany        every

sentence, the explanation may be brief.                        See Rita, 551 U.S. at

356.    The appropriate breadth and depth of a sentencing court’s

exposition depends upon the circumstances.                       See id. at 356-57.

A sentence within the guidelines range generally requires a less

extensive justification than a sentence that departs or varies

from the guidelines.              See United States v. Johnson, 587 F.3d

625, 639 (4th Cir. 2009).             “This is because guidelines sentences

themselves     are    in    many    ways     tailored     to     the    individual        and

reflect approximately two decades of close attention to federal

sentencing policy.”         Id.     (internal quotation marks omitted).

       Here, it is undisputed that the district court correctly

calculated     Dendy’s          sentencing       range    under        the   guidelines,

allowed both parties to present arguments for the sentences they

thought appropriate, and also heard personal statements by the

defendant     and    his   father     in   support       of    their    request        for   a

below-guidelines sentence.              The record also reflects that the

district court “considered the parties’ arguments” in light of

the sentencing factors of § 3553(a) and had a “reasoned basis”

for    its   decision      to    reject    Dendy’s       arguments       for       a   below-

                                             8
guidelines       sentence            in     favor       of     the       guidelines       sentence

requested      by    the       government.             Rita,       551   U.S.    at     356.      The

district court adopted the undisputed factual findings of the

PSR as a basis to evaluate the § 3553(a) factors, as well as the

conclusions          of    the        PSR       and     the        government’s         sentencing

recommendation as to the effect of those factors.                                     In sum, the

district court made an “individualized assessment based on the

facts presented.”              Gall, 552 U.S. at 50.

      We   also      hold       that      the    district          court’s      explanation       for

Dendy’s within-guidelines                   sentence         was    adequate      and    reflected

this individualized assessment of Dendy’s circumstances.                                       At the

sentencing       hearing,             the       district       court       first        explicitly

acknowledged Dendy’s argument regarding the sentencing disparity

between crack and powder cocaine and dismissed it on the ground

that in the court’s view, crack is more dangerous than powder.

The   district        court          also    heard      and    considered         the     personal

statements of Dendy and his father.                          However, the district court

agreed        with        the         government’s            position          regarding         the

appropriateness           of     a    within-guidelines              sentence.          While     the

district court did not explicitly address or reject each issue

raised by Dendy, the court’s statements during sentencing make

it    clear    that        the       court      considered          Dendy’s      individualized

circumstances when imposing the sentence.                                Given the nature of

the   arguments           raised       at    sentencing,            we    conclude       that     the

                                                   9
district court adequately explained the basis for its within-

guidelines        sentence.          See    Johnson,          587     F.3d     at    639    (noting

propriety         of   lesser      justification              where    guidelines          sentence

already reflects individualized circumstances); see also United

States v. Wood, 587 F.3d 882, 884 (8th Cir. 2009) (holding, in

the context of a within-guidelines sentence, that “not every

reasonable argument advanced by a defendant requires a specific

rejoinder by the judge” (internal quotation marks omitted)).

        For   the      foregoing      reasons,           we    hold       that      the    district

court’s       explanation,         though      not        lengthy,           was     sufficiently

individualized         and    adequate        to    justify           the    within-guidelines

sentence imposed.            It is clear that the district court heard and

considered the respective arguments and had a reasoned basis for

rejecting Dendy’s request for a downward variance and instead

imposing      a    sentence     at    the     bottom          of    the     guidelines       range.

Accordingly, we find no procedural error attributable to the

district court’s explanation of Dendy’s sentence.



                                              IV.

     Dendy         next     argues     that        his    sentencing           proceeding       was

tainted by the district court’s statement: “[F]rankly the Fourth

Circuit is pushing us back into the guidelines.                                      They really

are.”         J.A.     66.      Specifically,             Dendy        contends       that     this

statement         “raises    the     serious       possibility              that    the    district

                                               10
court          felt    it     was    being       pressured      to     impose      a     guidelines

sentence.”            Br. of Appellant at 11.               We disagree.

          At     the    outset,        we    recognize         that    it     is       procedurally

unreasonable for a sentencing court to treat the guidelines as

mandatory.             See United States v. Mendoza-Mendoza, 597 F.3d 212,

216 (4th Cir. 2010).                   Likewise, it is procedural error for a

district court to presume that a sentence within the guidelines

is reasonable or appropriate in a given case.                                Nelson v. United

States, 129 S. Ct. 890, 892 (2009) (per curiam); Rita, 551 U.S.

at 351; Raby, 575 F.3d at 381.                            We refer to a presumption in

favor of a guidelines sentence as a “Rita presumption,” after

the       Supreme       Court       decision       that     rejected        the    use     of       such

presumptions            by    sentencing         courts.           Rita,    551     U.S.       at   351

(holding that “the sentencing court does not enjoy the benefit

of    a    legal        presumption         that     the      Guidelines         sentence      should

apply”);         Mendoza-Mendoza,            597     F.3d     at    217    (referring          to    any

presumption            in    favor     of    a     Guidelines         sentence      as     a     “Rita

presumption”).

          A sentencing court does not apply a Rita presumption merely

by using the guidelines to orient its thinking or by selecting a

guidelines            sentence.        See       Mendoza-Mendoza,           597    F.3d     at      217.

Furthermore, there is no impermissible Rita presumption if the

appellate         court       concludes       that      the    sentencing         court     did      not

regard           the        advisory        guidelines         range        as     presumptively

                                                   11
reasonable, “even if stray language in the sentencing court’s

discussion, standing alone, could give the impression that a

presumption was used.”     Id. at 218.      Although a sentencing court

should   avoid     the   use   of   words     like     “presumption”      and

“obligation” with respect to the guidelines, it is “what a court

actually did” that is important on appeal, “not whether a remark

here or there, removed from the larger context in which it was

made, is on some list of forbidden phrases.”                 Id.   (internal

quotation marks omitted).      A sentencing court that “did what it

was supposed to do [by] hearing out both sides and making an

individualized assessment in light of § 3553(a)” should not be

vulnerable to claims that it applied a Rita presumption.            Id.

      Here, when we consider the district court’s statement in

its full context, it is clear that the district court treated

the   guidelines    neither    as   mandatory    nor    as    presumptively

reasonable.      Immediately following the remark in question, the

district court explicitly referred to the sentencing guidelines

as “advisory” rather than mandatory.            Moreover, the fact that

the district court adopted the government’s argument as to the

effect of the § 3553(a) factors, after acknowledging its own

consideration of those factors, shows the court’s awareness of

the latitude it possessed to determine an appropriate sentence.

      The district court never spoke in terms of a presumption or

words of an equivalent effect.           We accordingly decline Dendy’s

                                    12
invitation to read a Rita presumption into the district court’s

ambiguous offhand remark.                  The district court’s use of the word

“pushing” does not indicate that the district court believed

that it was obligated to impose a guidelines sentence.                                      Cf. id.

at    219      (holding      that       district       court    accorded         guidelines         an

impermissible quasi-mandatory effect with its statement that it

was “obligated to impose a Guidelines sentence” notwithstanding

its   disagreement           with   that     sentence);         Raby,      575       F.3d    at    377

(holding that district court improperly presumed reasonableness

of    a    within-guidelines             sentence       based     on     its     comments         that

“Guidelines sentences ‘are always reasonable and are presumed

always         reasonable’”        and     that        imposing      a    outside-guidelines

sentence         was   “‘extremely          difficult,          if       not     impossible’”).

Placing the district court’s comment in the context here, we do

not   understand        the    district       court       to    have      intended         the    word

“pushing” to confer a quasi-mandatory effect on the guidelines,

especially when the court described the guidelines as “advisory”

just 15 words later.

          In   light   of    these       considerations,          we      view       the    district

court’s        statement      as    a    stray     remark       that      ultimately         had    no

bearing         on     the     sentencing          decision          or        its     procedural

reasonableness.           We therefore conclude that the district court’s

statement did not constitute procedural error.



                                                  13
                                 V.

     For   the   foregoing   reasons,   we   conclude   that   Dendy’s

sentence was procedurally reasonable.    We therefore affirm.



                                                               AFFIRMED




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