        Reversed by Supreme Court, filed January 26, 2009



                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 06-4456



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


LAWRENCE W. NELSON, a/k/a Zikee,

                Defendant - Appellant.



     On Remand from the Supreme Court of the United States.
                      (S. Ct. No. 07-7380)


Submitted:   April 23, 2008                   Decided:   May 9, 2008


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


Affirmed by unpublished per curiam opinion.


Christopher A. Davis, DAVIS LAW OFFICES, Clarksburg, West Virginia,
for Appellant. Sharon L. Potter, United States Attorney, Zelda E.
Wesley, Assistant United States Attorney, Clarksburg, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          This case is before us on remand from the United States

Supreme Court for further consideration in light of Rita v. United

States, 127 S. Ct. 2456 (2007).   In United States v. Nelson, 237 F.

App’x 819 (4th Cir. 2007), vacated, 128 S. Ct. 1124 (2008), we

affirmed Lawrence W. Nelson’s 360-month sentence imposed by the

district court after a jury convicted Nelson of conspiracy to

distribute and possess with intent to distribute more than fifty

grams of crack cocaine, in violation of 21 U.S.C. § 846 (2000).

After reviewing Nelson’s appeal in light of Rita, we affirm.*

          In Rita, the Supreme Court held that “a court of appeals

may apply a presumption of reasonableness to a district court

sentence that reflects a proper application of the Sentencing

Guidelines.”   127 S. Ct. at 2462.     The Court stressed “that the

presumption . . . is an appellate court presumption.”   Id. at 2465.

Importantly, “the sentencing court does not enjoy the benefit of a

legal presumption that the Guidelines sentence should apply.”   Id.

          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, 127 S. Ct. at 2465).   The court then must


     *
      In the prior appeal, Nelson also challenged his conviction on
several grounds.    We reinstate our prior opinion affirming his
conviction. See Nelson, 237 F. App’x at 820-21.

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consider that range in conjunction with the factors set forth in 18

U.S.C.A. § 3553(a) (West 2000 & Supp. 2007).                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

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.

      Here, Nelson asserts that the district court applied the

guidelines in a mandatory fashion.               He relies on the district

court’s statement at sentencing “that ‘the guidelines are advisory

but under the case law of the Fourth Circuit Court of Appeals . . .


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the Guidelines are considered presumptively reasonable . . . . That

means that unless there’s a good reason in the factors that I just

reviewed    with     you,   the   Guideline      sentence    is   the   reasonable

sentence . . . .’”

              Although Nelson asserts that the district court treated

the guidelines as mandatory, we find, taking the district court’s

comments at sentencing as a whole, the court did not do so.                       See

United States v. Go, 517 F.3d 216, 218-20 (4th Cir. 2008).                    As in

Go,   the   district      court   in    Nelson’s    case   understood    that     the

guidelines were advisory and that it could impose a sentence

outside of the guidelines range.               For example, the district court

considered     the    arguments      from   Nelson   and    his   witnesses,      the

advisory guideline range, and the factors in § 3553(a), noting that

Nelson was convicted of a crack offense, was a leader in the

offense, possessed a firearm, had a significant criminal history,

and had made laudable efforts at self-rehabilitation.                   Given the

circumstances        of   Nelson’s     case,    however,    the   district    court

exercised its discretion not to vary from the advisory guideline

range and decided to impose a sentence at the bottom of the range.

We therefore find that the district court did not procedurally err

in sentencing Nelson.         See Go, 517 F.3d at 218-20.

              Accordingly, we affirm the 360-month sentence imposed by

the district court.          We dispense with oral argument because the

facts   and    legal      contentions    are    adequately    presented      in   the


                                        - 4 -
materials   before   the   court   and     argument   would   not   aid   the

decisional process.



                                                                    AFFIRMED




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