                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4425


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DERRICK LAMONT GRAY,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston.     Richard M. Gergel, District
Judge. (2:11-cr-00731-RMG-1)


Submitted:   December 16, 2013            Decided:   January 7, 2014


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


Affirmed by unpublished per curiam opinion.


T. Kirk Truslow, T. KIRK TRUSLOW, P.A., North Myrtle Beach,
South Carolina, for Appellant. Robert Nicholas Bianchi, OFFICE
OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Derrick Lamont Gray pled guilty, pursuant to a written

plea agreement, to possessing a firearm and ammunition after

being     convicted         of       a    felony,          in    violation         of    18   U.S.C.

§§ 922(g)(1), 924(a)(2), (e) (2012) (“Count Nine”); possession

with intent to distribute cocaine, in violation of 21 U.S.C.

§ 841(a)(1),         (b)(1)(C)           (2012)       (“Count      Ten”);      and        using    and

carrying a firearm during and in relation to, and possessing a

firearm    in    furtherance              of,     a       drug   trafficking            offense,   in

violation       of     18        U.S.C.         § 924(c)(1)(A)(i)             (2012)          (“Count

Eleven”).        The district court initially sentenced Gray to an

aggregate       term    of       131       months’         imprisonment,           consisting       of

seventy-one months on Counts Nine and Ten, concurrent, and a

sixty-month consecutive term on Count Eleven.

               In Gray’s first appeal, which was taken pursuant to

Anders    v.    California,              386    U.S.      738    (1967),      we    identified      a

potentially      meritorious              issue       related      to   the    calculation          of

Gray’s criminal history score, and we directed the parties to

file supplemental briefs on that issue.                            The Government moved to

vacate Gray’s sentence and to remand his case to the district

court to correct the error.                           Counsel for Gray agreed to the

remand, and a remand was ordered.

               On remand, the district court acknowledged the error,

which     resulted      in       a       reduction         in    Gray’s    criminal           history

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category.       Gray’s revised Guidelines range for Counts Nine and

Ten    was    forty-six          to     fifty-seven      months’       imprisonment.         The

sixty-month consecutive term for Count Eleven was unaffected by

the error.          After hearing from the parties, the district court

imposed an aggregate 117-month sentence.

              On     appeal,          counsel      has   filed    a    brief     pursuant     to

Anders, certifying that there are no nonfrivolous grounds for

appeal,      but     asking       us       to   review   Gray’s       convictions     and    the

reasonableness             of     the       sentence.        Gray       filed    a     pro    se

supplemental brief in which he contends that he is entitled to

relief pursuant to the Guidelines amendments enacted subsequent

to the passage of the Fair Sentencing Act of 2010 (“FSA”), and

argues       that    there        was       insufficient     evidence       to    support      a

conviction on Count Eleven.                      The Government has declined to file

a response brief.               For the reasons that follow, we affirm.

              Because Gray did not move in the district court to

withdraw his guilty plea, we review the Fed. R. Crim. P. 11

hearing for plain error.                        United States v. Martinez, 277 F.3d

517, 525 (4th Cir. 2002).                       To prevail under this standard, Gray

must    establish          that       an   error    occurred,     that    this       error   was

plain,    and       that    it    affected         his   substantial      rights.       United

States v. Massenburg, 564 F.3d 337, 342–43 (4th Cir. 2009).                                  Our

review of the record establishes that the district court fully

complied with the mandates of Rule 11, ensuring that Gray’s plea

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was knowing and voluntary, and supported by an independent basis

in fact.         We therefore affirm Gray’s convictions. 1

                 We review Gray’s sentence for reasonableness, applying

an abuse of discretion standard.                         Gall v. United States, 552

U.S. 38, 46, 51 (2007).                     This review requires consideration of

both       the    procedural          and    substantive       reasonableness      of    the

sentence.             Id. at 51.         We first assess whether the district

court       properly          calculated       the      advisory     Guidelines      range,

considered the factors set forth in 18 U.S.C. § 3553(a) (2012),

analyzed          any        arguments       presented        by   the     parties,      and

sufficiently explained the selected sentence.                           Id. at 49–51; see

United States v. Lynn, 592 F.3d 572, 575–76 (4th Cir. 2010).

                 If     there    is    no     procedural       error,     we    review   the

substantive           reasonableness         of   the    sentence,      “examin[ing]     the

totality         of    the    circumstances       to    see    whether    the    sentencing

court abused its discretion in concluding that the sentence it

chose satisfied the standards set forth in § 3553(a).”                               United

States v. Mendoza–Mendoza, 597 F.3d 212, 216 (4th Cir. 2010).

If the sentence is within the defendant’s properly calculated

Guidelines            range,     we    apply      a     presumption      of     substantive

reasonableness.               United States v. Bynum, 604 F.3d 161, 168-69

       1
       We reject as contrary to his sworn testimony at the Rule
11 hearing Gray’s claim that there was insufficient evidence to
support a conviction on Count Eleven.



                                                  4
(4th Cir. 2010); see Rita v. United States, 551 U.S. 338, 347

(2007) (permitting appellate presumption of reasonableness for

within-Guidelines sentence).

                 We have thoroughly reviewed the record and conclude

that       the    sentence     is     both    procedurally         and    substantively

reasonable.          We   discern       no   error     in    the    district    court’s

computation of Gray’s Guidelines range, 2 the opportunities the

court provided to Gray, his counsel, and his mother to present

mitigation testimony, or the court’s explanation of the sentence

imposed      by    reference     to   the    relevant       § 3553(a)    factors.      In

addition to noting its overall consideration of the sentencing

factors, the district court opined that the aggregate 117-month

sentence was appropriate given the seriousness of Gray’s offense

conduct.         This conduct included multiple instances in which Gray

possessed         firearms     in     conjunction      with     his      admitted    drug

dealing, and the need to impose a just punishment that would

protect      the    public     from   any    such    future    criminal     conduct    by

Gray.       Finally, we discern no basis in the record to overcome

the     presumption       of    substantive         reasonableness        accorded    the

within-Guidelines sentence the district court imposed.

       2
       Gray’s claim that he should be resentenced pursuant to the
Guidelines amendments enacted in the wake of the passage of the
FSA is without merit. The post-FSA Guidelines were in effect at
Gray’s initial sentencing in March 2012 and at his resentencing
in March 2013.


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            In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.    We therefore affirm the judgment of the district court.

We deny as moot Gray’s pro se motion for the appointment of new

counsel.     This       Court    requires         that    counsel       inform   Gray,     in

writing,    of    the   right        to    petition      the    Supreme    Court    of   the

United    States    for   further          review.        If    Gray    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 Gray.                           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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