                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 12-4109


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

          v.

CLIFTON BARNES,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:05-cr-00256-FDW-1)


Submitted:   November 30, 2012              Decided:   February 12, 2013


Before WILKINSON, DAVIS, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Richard L. Brown, Jr., LAW OFFICES OF RICHARD L. BROWN, JR.,
Monroe, 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Unpublished opinions are not binding precedent in this circuit.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:

             Clifton       Barnes     appeals       from     the   district              court’s

judgment after re-sentencing upon remand from this court.                                  This

court    reversed        Barnes’s     felon       in   possession        of        a    firearm

conviction and vacated his sentence for possession with intent

to distribute cocaine base and aiding and abetting the same, in

violation     of    21    U.S.C.      § 841(b)(1)(C)         (2006).          The       court’s

decision was based on United States v. Simmons, 649 F.3d 237

(4th Cir. 2011).           In accordance with Anders v. California, 386

U.S. 738 (1967), Barnes’s attorney has filed a brief certifying

that there are no meritorious issues, but questioning whether

the     121-month    sentence         on   remand      was    properly         calculated.

Barnes filed a pro se supplemental brief also challenging his

sentence.     We affirm.

             First, we review Barnes’s sentence for reasonableness,

applying a “deferential abuse-of-discretion standard.”                                  Gall v.

United States, 552 U.S. 38, 52 (2007).                       We begin by reviewing

the     sentence     for       significant        procedural       error,              including

improper     calculation         of    the       Guidelines     range,         failure       to

consider sentencing factors under 18 U.S.C. § 3553(a) (2006),

sentencing     based      on    clearly      erroneous       facts,      or    failure       to

adequately explain the sentence imposed.                     Id. at 51.            Only if we

find     a   sentence       procedurally          reasonable       can        we       consider

substantive reasonableness.                United States v. Carter, 564 F.3d

                                             2
325,    328     (4th    Cir.    2009).        Here,    Barnes’s           within-Guidelines

sentence is presumed reasonable, United States v. Susi, 674 F.3d

278,     289    (4th     Cir.       2012),    and     we     find     no     procedural         or

substantive error in its imposition.

               We    have     also    considered      Barnes’s        sentencing          issues

raised in his pro se supplemental brief.                       He contends first that

the district court judge constructively amended the indictment

by finding a drug quantity at sentencing that would have placed

him in the penalty provision of 21 U.S.C. § 841(b)(1)(B) (2006),

had that quantity been charged in the indictment.                                     Barnes was

convicted under § 841(b)(1)(C), with that section’s minimum and

maximum       sentences       applicable      because       the     Government          did    not

charge    a     quantity       in     the    superseding       indictment.               At    the

re-sentencing,         the     district      court    patiently       answered          Barnes’s

questions       about    sentencing         under    § 841(b)(1)(C)             and    explained

that the statutory penalties are different from the Guidelines

determination regarding drug amount.                       Barnes was sentenced based

on the drug quantity found at sentencing, and the sentence is

below     the       statutory       maximum    sentence        for     a        § 841(b)(1)(C)

offense.       Therefore, there was no error.

               Barnes       also     argues    that,        because        the     superseding

indictment       did    not    specify       drug    quantity,       he    should       only    be

sentenced based on powder cocaine because he was not aware that

the    other        substances       were    crack    cocaine.             He    states       that

                                               3
although he admitted to the crack cocaine offense, it was only

because everyone involved in the case told him it was crack.                        We

conclude that the district court did not err in calculating the

drug    types    and   quantity   attributable        to   Barnes.         The   record

supports the district court’s determination.

              In accordance with Anders, we have reviewed the record

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

We therefore affirm Barnes’s new sentence.                  This court requires

that counsel inform Barnes, in writing, of the right to petition

the Supreme Court of the United States for further review.                          If

Barnes 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

Barnes.

              We dispense with oral argument because the facts and

legal    contentions      are   adequately      presented     in     the    materials

before    this    court   and   argument      would   not   aid    the     decisional

process.

                                                                             AFFIRMED




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