                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 08-5146


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DAVID M. HARRIS,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Benson Everett Legg, District Judge.
(1:01-cr-00115-BEL-3)


Submitted:   April 15, 2010                   Decided:   May 25, 2010


Before TRAXLER, Chief Judge, and GREGORY and DUNCAN, Circuit
Judges.


Affirmed by unpublished per curiam opinion.


Gary E. Proctor, LAW OFFICES OF GARY E. PROCTOR, LLC, Baltimore,
Maryland, for Appellant.    Michael Joseph Leotta, Christopher
John Romano, Assistant United States Attorneys, Baltimore,
Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               A jury convicted David M. Harris of five offenses: (1)

conspiracy to distribute and possess with intent to distribute

five kilograms or more of cocaine; (2) possession with intent to

distribute five hundred grams or more of cocaine; (3) possession

of a firearm in furtherance of a drug trafficking crime; (4)

possession of a firearm by a convicted felon; and (5) possession

of ammunition by a convicted felon.                          Sentenced in accordance

with the then-mandatory sentencing guidelines, Harris received a

total of 270 months’ imprisonment.                      On direct appeal, this court

affirmed       Harris’      convictions,          but    vacated    his       sentence       and

remanded for resentencing, in accordance with United States v.

Booker, 543 U.S. 220 (2005).                 See United States v. Harris,                    215

F. App’x 262 (4th Cir. 2007) (Nos. 03-4297/4298).                                  On remand,

the district court sentenced Harris to 211 months’ imprisonment.

Harris now appeals.

               Counsel      has     filed    a       brief    pursuant     to      Anders     v.

California,      386       U.S.    738    (1967),       stating   that,       in     his   view,

there    are    no    meritorious         issues      for    appeal,    but     raising      the

issues     of    whether          certain    prior       convictions       were       properly

considered       in    Harris’       criminal         history     and   whether        Harris’

sentence was reasonable.                 In addition to restating the claims by

counsel     in       the     Anders       brief,        Harris    claims        in     pro    se

supplemental          briefs       that     the       district     court        abused       its

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discretion in denying his motion for another continuance and

failed    to    explain    its     reasons       for   the   chosen     sentence.         He

further    moves    for     remand      to   the       district    court         on   various

grounds    pertaining       to    his     convictions.           The    Government        has

declined to file a response.                 Finding no reversible error, we

affirm.

               We review a sentence for reasonableness, applying an

abuse of discretion standard.                 Gall v. United States, 552 U.S.

38, 51 (2007).       In so doing, we first examine the sentence for

“significant procedural error,” including: “failing to calculate

(or improperly calculating) the [g]uidelines range, treating the

[g]uidelines as mandatory, failing to consider the [18 U.S.C.]

§ 3553(a)       [(2006)]    factors,         selecting       a    sentence        based    on

clearly erroneous facts, or failing to adequately explain the

chosen    sentence.”         Id.        We   “then      consider       the       substantive

reasonableness      of     the    sentence        imposed.”       Id.        “Substantive

reasonableness review entails taking into account the ‘totality

of the circumstances, including the extent of any variance from

the [g]uidelines range.’”               United States v. Pauley, 511 F.3d

468, 473 (4th Cir. 2007) (quoting Gall, 522 U.S. at 51).                              If the

sentence is within the guidelines range, we apply a presumption

of reasonableness.          United States v. Abu Ali, 528 F.3d 210, 261

(4th     Cir.   2008)     (“[A]     sentence       located       within      a    correctly

calculated       guidelines       range      is    presumptively        reasonable.”),

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cert. denied, 129 S. Ct. 1312 (2009); see Rita v. United States,

551       U.S.    338,     347     (2007)       (upholding    presumption       of

reasonableness for within-guidelines sentence).

             Harris first contends that the district court erred in

calculating his criminal history category under the sentencing

guidelines.        In    this    regard,   he   objects   specifically    to   the

addition     of   points    in    his   criminal   history   for:   (1)   a    1984

arrest and resulting convictions for Sexual Offense and Battery;

and (2) a 1996 conviction for possession of a firearm in a

vehicle. *        In considering the district court’s application of

the guidelines, we review factual findings for clear error and

legal conclusions de novo.               United States v. Allen, 446 F.3d

522, 527 (4th Cir. 2006).

             Because Harris was convicted of Sexual Offense as an

adult, he was sentenced on the Sexual Offense conviction to more

than thirteen months, his sentence was imposed less than fifteen

years prior to the commencement of the subject offense and his

incarceration extended into the fifteen-year period prior to the


      *
        Although counsel challenges the prior conviction for
handgun possession on the ground that the Government failed to
prove that prior conviction belonged to Harris, a closer review
of the pleadings and transcripts of the proceedings makes clear
that counsel objected on this basis to the CDS possession
conviction, and not the handgun possession conviction. We find
no basis in the record to apply the argument to the handgun
possession conviction.



                                           4
commencement of the subject offense, we find three points were

properly added to Harris’ criminal history category based on

this prior conviction.              See U.S. Sentencing Guidelines Manual

§ 4A1.1, comment. (n.1) (“Three points are added for each prior

sentence     of      imprisonment           exceeding             one    year       and      one

month . . . . A sentence imposed more than fifteen years prior

to the defendant’s commencement of the instant offense is not

counted unless the defendant’s incarceration extended into this

fifteen year period . . . . A sentence imposed for an offense

committed    prior     to     the      defendant’s           eighteenth        birthday       is

counted    under   this     item     only    if        it    resulted        from   an     adult

conviction.”); see also USSG § 4A1.2(d)(1) (“If the defendant

was   convicted      as     an      adult        and    received         a     sentence      of

imprisonment      exceeding      one    year      and       one   month,      add   3    points

under § 4A1.1(a) for each such sentence.”).

            Harris     next      argues,         as     he    did       below,      that    his

conviction for CDS possession was also improperly assessed one

point in the calculation of his criminal history.                                He contends

the Government failed to prove he was the person convicted of

that offense.      The district court found by a preponderance of

the evidence that Harris was the individual who received the

conviction for possession of CDS in 1996.                          We find no error in

this factual finding.            See generally United States v. Love, 134

F.3d 595, 606 (4th Cir. 1998) (quoting United States v. Terry,

                                             5
916 F.2d 157, 162 (4th Cir. 1990)) (“A mere objection to the

finding in the presentence report is not sufficient . . . .

Without an affirmative showing the information is inaccurate,

the court is ‘free to adopt the findings of the [presentence

report] without more specific inquiry or explanation.’”).

            Last, Harris argues that his sentence was unreasonable

under the guidelines and the 18 U.S.C. § 3553(a) factors.                             The

district court here followed the necessary procedural steps in

sentencing       Harris,       appropriately         treating        the    sentencing

guidelines as advisory, properly calculating and considering the

applicable       guidelines      range,       performing        an    individualized

assessment of the § 3553(a) factors to the facts of the case,

and   stating     in    open    court     the       reasons   for     the       211-month

sentence.     See United States v. Carter, 564 F.3d 325, 328 (4th

Cir. 2009).

            In     determining       that       a     211-month       sentence       was

appropriate,      the    district       court       considered       the    §    3553(a)

factors, explicitly noting Harris’ offense was “serious;” he was

a part of an “organized drug ring;” “[he] recruited others;” and

he “has a serious criminal record.”                  The district court stressed

that a 211-month sentence protects the public, deters Harris,

and is sufficient in light of the fact that Harris has taken

college courses, has a work record, and has a son he cares

about.       Harris’    within-Guidelines            sentence    is    presumptively

                                          6
reasonable       on     appeal,       and     Harris         has     not    rebutted         that

presumption.          See United States v. Montes-Pineda, 445 F.3d 375,

379    (4th    Cir.    2006)       (stating      presumption         may    be    rebutted     by

showing       sentence      is     unreasonable         when       measured      against      the

§ 3553(a) factors).              We therefore find no abuse of discretion in

imposing the chosen sentence.

               In accordance with Anders, we have reviewed the entire

record in this case and Harris’ pro se supplemental briefs and

have    found    no     meritorious        issues       for    appeal.           We    therefore

affirm the district court’s judgment.                          We further deny Harris’

pending       motions       to   remand,      to      substitute       counsel,        and    “To

Dismiss for Extreme Appellate Delay.”                         This court requires that

counsel inform Harris, in writing, of the right to petition the

Supreme       Court    of    the    United    States         for    further      review.       If

Harris 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

Harris.        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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