                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 08-4032



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


DAMON TERRELL HEYWARD,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston.   Patrick Michael Duffy, District
Judge. (2:07-cr-00731-PMD-1)


Submitted:   June 25, 2008                 Decided:   July 21, 2008


Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mary Gordon Baker, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. John Charles Duane, Eric John Klumb,
Assistant United States Attorneys, Charleston, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Damon Terrell Heyward pled guilty to possessing a firearm

and ammunition after having been convicted of a felony in violation

of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2000), and the district court

sentenced him to 110 months in prison and three years of supervised

release.   On appeal, Heyward’s attorney has filed a brief pursuant

to Anders v. California, 386 U.S. 738 (1967), asserting, in her

opinion, there are no meritorious grounds for appeal but raising

the issues of whether the district court complied with Fed. R.

Crim. P. 11 when it accepted Heyward’s guilty plea, and whether the

district court’s sentence was reasonable.   Heyward has filed a pro

se supplemental brief raising the issues of whether he is entitled

to resentencing based on the recent amendment to U.S. Sentencing

Guidelines Manual (“U.S.S.G.”) § 4A1.2(a)(2) (2007), and whether

the district court plainly erred in calculating his guideline

range.   Finding no reversible error, we affirm.

           Appellate counsel first questions whether the district

court complied with Fed. R. Crim. P. 11 in accepting Heyward’s

guilty plea, but she alleges no error by the district court and

concludes the court fully complied with the rule.   Because Heyward

did not move in the district court to withdraw his guilty plea, we

review any challenge to the adequacy of the Rule 11 hearing for

plain error.   United States v. Martinez, 277 F.3d 517, 525 (4th




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Cir. 2002).   We have reviewed the record and find no plain error in

the district court’s acceptance of Heyward’s guilty plea.

          Appellate counsel next questions whether the district

court’s sentence was reasonable, but she alleges no error and

concludes the district court did not abuse its discretion in

sentencing Heyward.    In his pro se supplemental brief, Heyward

questions whether the district court erred in calculating his

criminal history category and his offense level.

          We review Heyward’s sentence for abuse of discretion.

See Gall v. United States, 128 S. Ct. 586, 597 (2007).      “The first

step in this review requires us to ‘ensure that the district court

committed no significant procedural error, such as . . . improperly

calculating    .   .   .   the    Guidelines     range.’”      United

States v. Osborne, 514 F.3d 377, 387 (4th Cir.) (quoting Gall, 128

S. Ct. at 597), cert. denied, 76 U.S.L.W. 3629 (2008).        We then

consider the substantive reasonableness of the sentence imposed,

taking into account the totality of the circumstances.      Gall, 128

S. Ct. at 597.     We presume that a sentence within a properly

calculated guideline range is reasonable.      United States v. Allen,

491 F.3d 178, 193 (4th Cir. 2007); see also Rita v. United States,

127 S. Ct. 2456 (2007) (upholding our presumption).

          We have reviewed the record and find Heyward’s sentence

is both procedurally and substantively reasonable, and the district

court did not abuse its discretion in imposing the sentence.


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First, the district court properly calculated Heyward’s guideline

range.   The court correctly determined his base offense level was

twenty-four under U.S.S.G. § 2K2.1(a)(2), because he committed the

instant offense subsequent to sustaining at least two felony

convictions of a controlled substance offense, and correctly added

four levels under U.S.S.G. § 2K2.1(b)(6), because Heyward possessed

the firearm and ammunition in connection with another felony

offense, namely, involuntary manslaughter.   Although the probation

officer did not recommend that Heyward receive an acceptance of

responsibility reduction under U.S.S.G. § 3E1.1, the district court

sustained his counsel’s objection and granted Heyward a three-point

reduction.   Thus, his total offense level was twenty-five.   With a

criminal history category VI, and a 120-month statutory maximum,

Heyward’s guideline range was 110 to 120 months in prison.

          Heyward also challenges the calculation of his criminal

history category, contending that he should get the benefit of a

recent amendment to U.S.S.G. § 4A1.2(a)(2) regarding when multiple

prior sentences are counted separately or as a single sentence, and

that his criminal history category should be lower.   We agree that

the 2007 edition of the guideline manual applies to Heyward’s case,

because it was in effect when he was sentenced and his presentence

report, which was revised on November 15, 2007, states that the

2007 edition was used in preparing the report.    However, even in




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light of the amendment, we conclude that Heyward’s criminal history

category was correctly determined to be VI.

          Specifically, Heyward challenges the points assessed for

his multiple prior sentences on April 1, 1998 and November 6, 2001.

However, the two offenses for which he was sentenced on April 1,

1998 were separated by an intervening arrest, and thus properly

counted separately.   Even assuming that the two offenses for which

Heyward was sentenced on November 6, 2001 should be counted as a

single sentence, this would only reduce his criminal history score

by one point to a total of seventeen points.   Because Heyward would

still be in criminal history category VI and his guideline range

the same, this would not constitute significant procedural error.

          Finally, we conclude that the district court reasonably

determined that a sentence at the low end of Heyward’s advisory

guideline range was appropriate.       The Government argued for a

sentence at the statutory maximum, because Heyward’s criminal

history was extensive and the instant offense resulted in the death

of a close relative, which could have been avoided.         Heyward

requested a sentence of less than the statutory maximum so that he

would have a chance to come back to his family and start the

healing process with them. Although Heyward did not contest any of

his criminal history points in the district court, he also argued

that his drug crimes involved small quantities, that he was not a

violent man, and he had no prior convictions for gun crimes.      A


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number of his family members and friends testified on his behalf.

The district court considered the guidelines and the statutory

factors.    The court acknowledged Heyward’s remorse was genuine and

the situation was a tragedy.           Although the court gave him a bit of

a   break   in    deference   to     his   family,   the     court    determined   a

guideline sentence was appropriate because of Heyward’s extensive

criminal history and the seriousness of the offense.

             In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.     We therefore deny Heyward’s pro se motion for transcripts

at government expense and affirm the district court’s judgment.

This court requires that counsel inform his client, in writing, of

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

further review.      If the client 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 the client.

             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




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