                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4465


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

GARY RICHARD LACKEY,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.      Richard L.
Voorhees, District Judge. (5:11-cr-00052-RLV-1)


Submitted:   January 11, 2013             Decided:   January 17, 2013


Before DUNCAN, DAVIS, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Noell P. Tin, TIN, FULTON, WALKER & OWEN, PLLC, Charlotte, 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Unpublished opinions are not binding precedent in this circuit.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:

            Gary Richard Lackey pled guilty pursuant to a plea

agreement to one count of possession with intent to distribute

and    aiding    and     abetting    the    distribution          of   a      Schedule   I

controlled substance, in violation of 18 U.S.C. § 2 (2006); 21

U.S.C.A. §§ 841(a), 841(b)(1)(B) (West 1999 & Supp. 2012), and

was sentenced to 120 months in prison.                       Lackey’s attorney has

filed a brief in accordance with Anders v. California, 386 U.S.

738 (1967), stating there are no meritorious grounds for appeal,

but raising as possible issues for review whether the district

court   complied       with   Fed.    R.    Crim.      P.    11   when     it    accepted

Lackey’s    guilty        plea      and    whether          Lackey’s       sentence      is

reasonable.      Lackey filed a pro se supplemental brief in which

he asserts that counsel rendered ineffective assistance because

he allegedly failed to explain the ramifications of 21 U.S.C.

§ 851 (2006) “and it’s [sic] affect on his statutory mandatory

minimum sentence and/or the Guidelines[.]”                        The Government has

declined   to    file     a   responsive       brief.        Finding     no     error,   we

affirm.

            Because      Lackey     did    not   move       the   district      court    to

withdraw his guilty plea, any errors in the Rule 11 hearing are

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

517,    525-26    (4th     Cir.   2002).         “To    establish        plain     error,

[Lackey] must show that an error occurred, that the error was

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plain,    and          that   the    error    affected       his    substantial           rights.”

United States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007).

Even     if        Lackey        satisfies      these       requirements,            we    retain

discretion to correct the error, which we should not exercise

unless the error seriously affects the fairness, integrity or

public reputation of judicial proceedings.                          Id.

               A review of the record establishes that the district

court    complied             with   Rule     11’s     requirements,           ensuring         that

Lackey’s plea was knowing and voluntary, that he understood the

rights he was giving up by pleading guilty and the sentence he

faced,       and       that     he   committed       the    offense       to    which      he   was

pleading guilty.              Accordingly, we affirm Lackey’s conviction.

               After United States v. Booker, 543 U.S. 220 (2005), we

review a sentence for reasonableness.                            Gall v. United States,

552 U.S. 38, 51 (2007).                 The first step in this review requires

that    we    ensure          the    district    court      committed          no    significant

procedural error.                United States v. Evans, 526 F.3d 155, 161

(4th     Cir.          2008).        Procedural       errors       include          “failing     to

calculate          (or     improperly       calculating)         the      Guidelines       range,

treating the Guidelines as mandatory, failing to consider the

[18    U.S.C.A.]          § 3553(a)     [(West       2000    &     Supp.    2012)]        factors,

selecting          a     sentence     based     on    clearly       erroneous         facts,     or

failing to adequately explain the chosen sentence — including an



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explanation for any deviation from the Guidelines range.”                       Gall,

552 U.S. at 51.

              “[I]f a party repeats on appeal a claim of procedural

sentencing error . . . which it has made before the district

court,   we    review     for   abuse    of    discretion”    and   will     reverse

unless we can conclude “that the error was harmless.”                         United

States   v.    Lynn,      592   F.3d    572,   576    (4th   Cir.   2010).        For

instance,      if   “an     aggrieved     party      sufficiently      alerts    the

district court of its responsibility to render an individualized

explanation” by drawing arguments from § 3553 “for a sentence

different      than     the     one     ultimately      imposed,”      the      party

sufficiently “preserves its claim.”                  Id. at 578.     However, we

review   unpreserved       non-structural       sentencing    errors    for     plain

error.   Id. at 576-77.

              If, and only if, we find the sentence procedurally

reasonable can we consider the substantive reasonableness of the

sentence imposed.          United States v. Carter, 564 F.3d 325, 328

(4th Cir. 2009).        This court presumes that a sentence within the

Guidelines range is reasonable.                See United States v. Mendoza-

Mendoza, 597 F.3d 212, 217 (4th Cir. 2010) (“[W]e may and do

treat on appeal a district court’s decision to impose a sentence

within the Guidelines range as presumptively reasonable.”).

              Our review of the record reveals no procedural error

in Lackey’s sentence.            The district court adopted the proper

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Guidelines range calculation, properly considered the § 3553(a)

factors, and appropriately explained Lackey’s sentence.

                  We next consider the substantive reasonableness of the

sentence,           taking       into    account      the     “totality       of    the

circumstances, including the extent of any variance from the

Guidelines range.”               Gall, 552 U.S. at 51.        Where, as here, the

Government has not moved for a departure from the Guidelines

range       due     to     the     defendant’s     substantial     assistance,     the

district court lacks discretion to impose a sentence below the

statutory minimum.               United States v. Robinson, 404 F.3d 850, 862

(4th       Cir.    2005).         Moreover,    the   imposition    of    a    statutory

mandatory minimum sentence is per se reasonable.                        United States

v. Farrior, 535 F.3d 210, 224 (4th Cir. 2008).                           In Lackey’s

case, his 120-month sentence was the minimum sentence required

by     statute       for     the    narcotics      offense.       See    21    U.S.C.A.

§§ 841(a)(1), (b)(1)(B) (West 1999 & Supp. 2012).                        Accordingly,

we   find         that   the     sentence     is   substantively    reasonable      and

conclude that the district court committed no reversible error

in its imposition. *


       *
       To the extent that Lackey attempts to raise an ineffective
assistance of counsel claim based on his allegation that counsel
failed to explain to him the ramifications of § 851, we find
that ineffective assistance does not conclusively appear on the
record.   See United States v. Benton, 523 F.3d 424, 435 (4th
Cir. 2008) (holding that an ineffective assistance of counsel
claim is not cognizable on direct appeal “unless it conclusively
(Continued)
                                               5
            In accordance with Anders, we have reviewed the record

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

We therefore affirm the district court’s judgment.                         This court

requires that counsel inform Lackey, in writing, of the right to

petition    the    Supreme     Court   of       the   United    States    for   further

review.          If Lackey 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 Lackey.            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




appears from the record that defense counsel did not provide
effective representation”) (internal citation omitted).

          Although we note that an ineffective assistance of
counsel claim should generally be raised by a habeas corpus
motion under 28 U.S.C.A. § 2255 (West Supp. 2012), we intimate
no view as to the validity or lack of validity of such a claim.



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