                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4939


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

BRANDON LAMAR HARRINGTON,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:08-cr-00323-TDS-1)


Submitted:   February 10, 2011            Decided:   February 16, 2011


Before WILKINSON and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North
Carolina, for Appellant. Anand P. Ramaswamy, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Brandon Lamar Harrington pleaded guilty pursuant to a

written plea agreement to one count of conspiracy to distribute

cocaine    base,        in    violation     of       21   U.S.C.   § 846        (2006).          The

district    court        imposed      a    downward        variance      sentence         of     188

months of imprisonment.               Counsel for Harrington filed a brief in

accordance        with       Anders   v.    California,          386     U.S.       738   (1967),

certifying that there are no meritorious grounds for appeal, but

questioning whether the guilty plea was knowing and voluntary

and whether the district court fashioned a reasonable sentence.

Harrington filed a pro se supplemental brief.                                  The Government

elected not to file a brief.                 Finding no error, we affirm.

              A    guilty        plea      is    constitutionally              valid       if     it

“represents        a     voluntary         and       intelligent       choice        among       the

alternative courses of action open to the defendant.”                                        North

Carolina    v.     Alford,       400 U.S.        25,      31   (1970).         We    evaluate      a

guilty plea based on the “the totality of the circumstances”

surrounding the guilty plea.                     United States v. Moussaoui, 591

F.3d   263,       278    (4th Cir 2010).               Harrington        did    not       move    to

withdraw his guilty plea, and this court therefore reviews the

adequacy of the plea pursuant to Fed. R. Crim. P. 11 for plain

error.     See United States v. Vonn, 535 U.S. 55, 58-59 (2002)

(holding defendant who lets Rule 11 error pass without objection

in the district court must satisfy the plain-error test); United

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

district court properly conducted the Rule 11 hearing and the

record reveals that Harrington’s plea was knowing and voluntary.

               A review of the record reveals no error in sentencing. *

When determining a sentence, the district court must calculate

the     appropriate     advisory       Sentencing   Guidelines          range   and

consider it in conjunction with the factors set forth in 18

U.S.C. § 3553(a) (2006).            Gall v. United States, 552 U.S. 38,

49-50 (2007); United States v. Lynn, 592 F.3d 572 (4th Cir.

2010).     Appellate review of a district court’s imposition of a

sentence,       “whether     inside,    just    outside,     or     significantly

outside the [g]uidelines range,” is for abuse of discretion.

Gall,     552    U.S.   at    41.      Sentences    within        the   applicable

Guidelines range may be presumed by the appellate court to be

reasonable.        United States v. Pauley, 511 F.3d 468, 473 (4th

Cir. 2007).

               The district court followed the necessary procedural

steps     in    sentencing    Harrington,      appropriately        treating    the

Sentencing       Guidelines    as   advisory,    properly     calculating       and

      *
       Harrington’s plea agreement included a waiver barring an
appeal from the calculation of his sentence.       However, the
Government has not filed a motion to dismiss asserting the
waiver, and we do not sua sponte enforce appellate waivers. See
generally United States v. Blick, 408 F.3d 162, 168 (4th Cir.
2005) (citing United States v. Brock, 211 F.3d 88, 90 n.1 (4th
Cir. 2000)).



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considering the applicable Guidelines range, and weighing the

relevant § 3553(a) factors.                     Harrington’s Guidelines range was

262-327 months.         The court granted a downward variance sentence

of 188 months and the sentence may be presumed reasonable by

this court.           Pauley, 511 F.3d at 473.                        We conclude that the

district     court     did     not      abuse       its      discretion          in   imposing       the

chosen sentence.

             Harrington            filed        a       pro     se        supplemental           brief

questioning       whether         the     district            court       erred        in    using     a

conviction      obtained       pursuant         to      an    Alford       plea       to    apply    the

career    offender       enhancement         and          whether         the    court      erred     in

failing    to    further       reduce      his          sentence      based       on       the   latest

amendment       for    crack      cocaine       sentences.                In     accordance         with

Anders, we have reviewed these issues and the record in this

case   and   have      found       no    meritorious           issues           for   appeal.         We

therefore     affirm     Harrington’s               conviction        and       sentence.           This

court requires that counsel inform Harrington, in writing, of

the right to petition the Supreme Court of the United States for

further    review.           If    Harrington            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 Harrington.                              We dispense with oral

argument because the facts and legal contentions are adequately

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presented in the materials before the court and argument would

not aid the decisional process.

                                                      AFFIRMED




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