                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 07-4976



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


JAMORAL ANTONEE MCCORKLE,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:06-cr-00276)


Submitted:   April 23, 2008              Decided:   September 5, 2008


Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.


Affirmed and remanded by unpublished per curiam opinion.


Louis C. Allen III, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant.    Randall Stuart Galyon, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Jamoral Antonee McCorkle pled guilty to possession with

intent to distribute approximately twenty-four grams of crack

cocaine (Count 1), in violation of 21 U.S.C. § 841(a)(1) (2000),

and possession of a firearm after having been convicted of a felony

(Count 2), in violation of 18 U.S.C. § 922(g)(1) (2000).                   At the

sentencing hearing, the district court pronounced a sentence of 205

months on Count 1 and a 120-month sentence on Count 2, to run

concurrently with the sentence on Count 1.                 Counsel has filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967),

suggesting that McCorkle’s sentence is unreasonable.1 Counsel also

states, however, that in light of McCorkle’s knowing and voluntary

waiver of the right to appeal,2 there are no meritorious issues

before the court.   McCorkle was informed of his right to file a pro

se   supplemental   brief,   but   he       has    not   done   so.   We   affirm

McCorkle’s    convictions    and   the      oral    sentence    imposed    at   the


      1
      Counsel also notes in a footnote that “[a]lthough precluded
at the time by Fourth Circuit precedent, the district court should
have been allowed to consider th[e] unwarranted [100:1 crack-to-
powder cocaine] disparity under 18 U.S.C.[A.] § 3553(a) [(West 2000
& Supp. 2008)].” (Appellant’s Br. at 11 n.2, citing Kimbrough v.
United States, 128 S. Ct. 558 (2007)). We find that Kimbrough is
of no assistance to McCorkle because his ultimate guideline range
was not determined based on drug quantity but on his status as a
career offender.
      2
      Because the Government has not asserted the waiver on appeal,
we do not enforce it. See United States v. Poindexter, 492 F.3d
263, 271 (4th Cir. 2007) (stating that, if Anders brief is filed in
case with appeal waiver, Government’s failure to respond “allow[s]
this court to perform the required Anders review”).

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sentencing hearing but remand the case to the district court with

instructions to correct the written judgment to conform to the oral

sentence.

              McCorkle’s       counsel    suggests       that    the     sentence   is

unreasonable because it is greater than necessary to achieve the

sentencing goals of promoting respect for the law and providing

just punishment for the offenses because McCorkle was convicted in

state court and sentenced to six months on the same conduct that

formed the basis of the federal charges against him. In sentencing

a defendant after United States v. Booker, 543 U.S. 220 (2005), a

district court must engage in a multi-step process.                       First, the

court must correctly calculate the appropriate advisory guidelines

range.    Gall v. United States, 128 S. Ct. 586, 596 (2007) (citing

Rita v. United States, 127 S. Ct. 2456, 2465 (2007)).                       The court

then must consider that range in conjunction with the § 3553(a)

factors.      Id.   The court “may not presume that the Guidelines range

is reasonable” but, rather, must “make an individualized assessment

based    on   the    facts     presented”       in   determining    an    appropriate

sentence. Id. at 596-97. The district court also “must adequately

explain the chosen sentence to allow for meaningful appellate

review . . . .”           Id. at 597.

              Appellate review of a district court’s imposition of a

sentence      is    for    abuse   of   discretion.       Id.;     see   also   United




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States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).         The appellate

court:

      must first 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 — including an
      explanation for any deviation from the Guidelines range.
      Assuming that the district court’s sentencing decision is
      procedurally sound, the appellate court should then
      consider the substantive reasonableness of the sentence
      imposed under an abuse-of-discretion standard.       When
      conducting this review, the court will, of course, take
      into account the totality of the circumstances, including
      the extent of any variance from the Guidelines range.

Gall, 128 S. Ct. at 597.

            McCorkle does not challenge the procedural aspects of his

sentence.   Turning to the substantive reasonableness of McCorkle’s

sentence, counsel questions whether the 205-month sentence serves

the   purposes   of   sentencing.       The   district   court   considered

McCorkle’s argument that a sentence at or below the bottom of the

advisory guideline range was sufficient to serve the purposes of

sentencing because McCorkle had been convicted in state court on

the same conduct that formed the basis of the federal charges

against him.     The court rejected his argument on the ground that

McCorkle essentially received no jail time on the state sentence

because it ran concurrently with another state sentence. Thus, the

district court selected a sentence of 205 months, which was near

the middle of the guideline range and took into account McCorkle’s


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college attendance. We therefore conclude that, under the totality

of    the   circumstances,    the    district       court   did   not   abuse    its

discretion in determining that the § 3553(a) factors supported the

205-month sentence imposed on Count 1.

             We have reviewed the record in accordance with Anders

and affirm McCorkle’s convictions and the oral sentence imposed at

the   sentencing   hearing.         We   note,   however,     that   the    written

judgment reflects concurrent sentences of 205 months on both Counts

1 and 2.     But the oral sentence properly reflected the 120-month

statutory maximum for Count 2.            18 U.S.C. § 924(a)(2).           When the

written     judgment   conflicts     with     the   oral    sentence,    the    oral

sentence controls. See United States v. Osborne, 345 F.3d 281, 283

n.1 (4th Cir. 2003); United States v. Morse, 344 F.2d 27, 29 n.1

(4th Cir. 1965).       Thus, we remand the case to the district court

with instructions to correct the written judgment to conform to the

sentence announced at the sentencing hearing.

             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 thereof was served on the client.                  We dispense with oral

argument because the facts and legal contentions are adequately


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presented in the materials before the court and argument would not

aid the decisional process.

                                            AFFIRMED AND REMANDED




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