                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4833


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

VICARA KENARIE DAVIS,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:09-cr-00374-F-1)


Submitted:   May 27, 2011                     Decided:   June 8, 2011


Before KING, WYNN, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.    George E. B. Holding, United States Attorney,
Jennifer P. May-Parker, Kristine L. Fritz, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Vicara Kenarie Davis pled guilty to possession of a

firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (2006), and

was sentenced to a within-Guidelines term of eighty-seven months

imprisonment.        Davis appeals, contending that the district court

committed     procedural     error       by   rejecting,       without   an    adequate

explanation, his argument for a sentence below the Guidelines

range based on the anticipated elimination of “recency” points

for   criminal   history         under   U.S.     Sentencing     Guidelines      Manual

§ 4A2.1(e) (2009).         We affirm.

             Davis’    criminal      history       score   included      two    points

awarded under USSG § 4A1.1(e) for having committed the instant

offense less than two years after his release from confinement

on a prior sentence.             At his sentencing hearing in July 2010,

Davis     objected    to   the    inclusion       of   these    two   points    on   the

ground that the Sentencing Commission had submitted a proposed

amendment to Congress to eliminate § 4A1.1(e) and consideration

of the recency of a defendant’s release from a prior sentence

which would take effect in November 2010 unless Congress acted

to block it. 1        The district court overruled his objection and

subsequently declined to impose a variance sentence below the

advisory Guidelines range on the same ground.

      1
          See USSG App. C, Amendment 742, eff. Nov. 1, 2010.


                                              2
            We review a sentence for procedural and substantive

reasonableness, Gall v. United States, 552 U.S. 38, 51 (2007),

first    ensuring    that    the    district        court      did    not    commit   any

“significant      procedural       error,”     such       as   failing      to   properly

calculate the applicable Guidelines range, failing to consider

the 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2010) factors, or

failing to adequately explain the sentence.                          Id.     When either

party “presents non-frivolous reasons for imposing a different

sentence   than     that    set    forth     in     the    advisory        Guidelines,   a

district judge should address the party’s arguments and explain

why he has rejected those arguments.”                     United States v. Carter,

564 F.3d 325, 328 (4th Cir. 2009) (internal quotation marks and

citation omitted).         If no procedural error occurred, we presume

that a sentence within a properly calculated Guidelines range is

reasonable.    United States v. Allen, 491 F.3d 178, 193 (4th Cir.

2007).

            Davis argues that the inclusion of the two criminal

history points under § 4A1.1(e) 2 resulted in a Guidelines range

that was greater than necessary to meet the sentencing goals of

§ 3553(a).     He     maintains      that      he    presented        a    non-frivolous

     2
       The district court did not clearly err in overruling
Davis’ objection to his criminal history score, which was
correct under the applicable 2009 Guidelines Manual. See USSG
§ 1B1.11(a) (sentencing court shall use Guidelines Manual in
effect on date of sentencing).



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argument       for    a   sentence        below    the    Guidelines        range   —    the

proposed elimination of recency points — but the district court

did     not    provide       an     explanation          that     permits     “meaningful

appellate      review,”      as    required        by    Carter,     564    F.3d    at   330

(quoting Gall, 552 U.S. at 597).                   Davis argues that the district

court’s       explanation         for     imposing        a     sentence     within      the

Guidelines range was not coherent, that the appeals court may

not    guess    at    the    district      court’s       reason     for    rejecting     his

request for a variance, and that resentencing is necessary so

that the district court may more clearly explain its ruling.

               We disagree.         The district court adequately responded

to Davis’ argument for a below-Guidelines sentence by explaining

that    Davis’       continued     criminal       conduct       after     release   from    a

prior sentence indicated that he had not decided to end his

criminal activity.           As a result, the court did not believe that

the proposed change in the Guidelines warranted a sentence below

the Guidelines range.               The court’s explanation was brief but

sufficient       to    comply      with    Gall    and        Carter.      Therefore,      we

conclude that the district court did not commit procedural error

and the within-Guidelines sentence was reasonable.

               Accordingly,        we   affirm     the    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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