                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-5093


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

DAMION KETTLE, a/k/a Chris White,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:08-cr-00208-HEH-6)


Submitted:    December 16, 2009            Decided:   February 16, 2010


Before MICHAEL, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Barbara L. Hartung, Richmond, Virginia, for Appellant.  Angela
Mastandrea-Miller, Assistant United States Attorney, Richmond,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Damion Kettle appeals his eighty-seven month sentence

for    conspiracy       to     distribute           and     possess      with    intent        to

distribute marijuana, in violation of 21 U.S.C. §§ 841(a), 846

(2006).        Appellate       counsel         has     filed     a    brief     pursuant       to

Anders v. California, 386 U.S. 738 (1967), questioning whether

the    district      court’s    sentence         was       substantively       unreasonable,

but    concluding      there       are    no    meritorious          grounds    for    appeal.

Additionally,        Kettle    filed       a    pro    se    supplemental       brief.         We

affirm.

              We    review     a    sentence          for    reasonableness          under     an

abuse-of-discretion standard.                   Gall v. United States, 552 U.S.

38, 51 (2007).         This review requires appellate consideration of

both    the       procedural        and    substantive           reasonableness         of     a

sentence.      Id.

              In    determining          whether       a    sentence     is     procedurally

reasonable, we first assess whether the district court properly

calculated the defendant’s advisory guideline range.                                 See Gall,

552 U.S. at 49, 51.            We then consider whether the district court

failed to consider the 18 U.S.C. § 3553(a) (2006) factors and

any    arguments      presented      by    the        parties,       selected    a    sentence

based on “clearly erroneous facts,” or failed to sufficiently

explain the selected sentence.                        See id. at 49-50, 51.                  When

imposing      a    sentence,        the        district       court     “‘must        make     an

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individualized         assessment      based        on     the    facts        presented.’”

United   States    v.    Carter,       564    F.3d       325,    328    (4th    Cir.          2009)

(quoting Gall, 552 U.S. at 50) (emphasis omitted).

            Finally, we review the substantive reasonableness of

the   sentence,        “taking       into    account        the    ‘totality             of    the

circumstances, including the extent of any variance from the

Guidelines range.’”           United States v. Pauley, 511 F.3d 468, 473

(4th Cir. 2007) (quoting Gall, 552 U.S. at 51).                           When reviewing

the district court’s application of the sentencing guidelines,

we review findings of fact for clear error and questions of law

de novo.      United States v. Osborne, 514 F.3d 377, 387 (4th

Cir.),   cert.    denied,      128     S.    Ct.    2525    (2008).            We    afford        a

sentence    within      the     properly         calculated        guideline         range         a

presumption of reasonableness.                United States v. Green, 436 F.3d

449, 457 (4th Cir. 2006); see Rita v. United States, 551 U.S.

338, 341, 347 (2007).

            Kettle       raises       two     challenges          to     the        procedural

reasonableness of his sentence.                   Kettle first challenges on two

grounds the district court’s application of a two offense level

enhancement      for    possession      of    a    firearm,       pursuant          to    United

States     Sentencing         Commission,          Guidelines          Manual,        (“USSG”)

§ 2D1.1(b)(1).         First, Kettle asserts that this enhancement was

improper    because      he    was    never      indicted        for    possession            of   a

firearm during the commission of a crime, and the Government

                                             3
failed to prove this allegation.                    Alternatively, Kettle contends

that    the    Government      failed      to      demonstrate        that      he       actively

employed      the     weapon     during    the          commission    of     the         offense.

Because Kettle’s two alternative arguments against application

of a firearms enhancement are made for the first time on appeal,

our review is for plain error.                          See Fed. R. Crim. P. 52(b);

United States v. Olano, 507 U.S. 725, 731-32 (1993).

              A two-level increase is authorized under § 2D1.1(b)(1)

if     the    defendant      possessed      a       dangerous       weapon      during        the

offense.           Application      Note   3       to    § 2D1.1     explains        that    the

enhancement “should be applied if the weapon was present, unless

it is clearly improbable that the weapon was connected with the

offense.”          The Government “need show only that the weapon was

possessed during the relevant illegal drug activity.”                                      United

States v. McAllister, 272 F.3d 228, 234 (4th Cir. 2001).

              Here, it is clear that the district court did not err

in enhancing Kettle’s offense level for possession of a firearm.

The statement of facts, to which Kettle agreed, describes that a

firearm       was    found     in    Kettle’s           residence     during         a    search

following      a     controlled      delivery           of   marijuana     to    Kettle       by

narcotics agents in 2006.             Thus, because the firearm was present

during       the    relevant     illegal        activity,       the    enhancement           was

proper, and Kettle’s claims are without merit.



                                               4
               Additionally, Kettle asserts that the district court

erred     in     improperly        considering        the      possibility         of     the

Government’s       future     filing     of      a    motion    for     a       substantial

assistance reduction.          Kettle bases this claim on the following

exchange between the district judge and the Government, which

occurred       immediately     after    the      Government      gave       its    argument

regarding sentencing:          “THE COURT:           Does it appear that there is

a likely prospect that Mr. Kettle will be back before the Court

for   reconsideration         of    a   sentence       at   a    later      time?         MS.

MASTANDREA-MILLER:       Yes, sir, I believe so.”

               There is at least some authority to support Kettle’s

contention       that   it    would     be    inappropriate        for      a     judge    to

consider the likelihood of a defendant’s future cooperation when

determining a sentence.            See United States v. Barnette, 427 F.3d

259, 262 (4th Cir. 2005) (“A sentencing court cannot allow ‘the

prospect of Rule 35(b) relief in the future’ to influence or

alter its decision on a motion for a downward departure under

[USSG] § 5K1.1.”).           Though this is an issue of first impression

before us, the Sixth Circuit has held that “sentencing courts

cannot consider the potential for a future sentence reduction in

imposing sentence.”           United States v. Recla, 560 F.3d 539, 545

(6th Cir. 2009).        However, because this objection was not raised

before the district court, our review is for plain error on

appeal.    See Fed. R. Crim. P. 52(b); Olano, 507 U.S. at 731-32.

                                             5
              Here,    Kettle    is    unable      to    demonstrate            plain    error.

The district court merely raised the question of whether Kettle

would    likely       be    back      before       the        court        for     a     future

reconsideration of his sentence.                 There is no evidence, however,

that    the     judge      actually      based          the     sentence          upon     this

consideration.         Indeed, the record reflects that the district

judge made an individualized assessment of the proper sentence,

applying      the     appropriate       18       U.S.C.       § 3553(a)          factors     in

determining Kettle’s sentence.                   Accordingly, we find that the

district court did not commit procedural error in determining

Kettle’s sentence.

              Next,    Kettle’s       counsel      challenges           the      substantive

reasonableness of Kettle’s sentence.                      Kettle’s counsel argues

that    the    district     court      acted      unreasonably             in    imposing     a

sentence at the highest end of the advisory guidelines range, in

light of the fact that it was drastically in excess of any prior

sentence that Kettle had received and was unnecessarily long to

deter   future      criminal     conduct.          However,         this    contention       is

without merit.        Under Rita, this court affords a sentence within

a   properly        calculated        guideline         range       a    presumption        of

reasonableness.         551 U.S. at 347; see Green, 436 F.3d at 457.

Kettle’s counsel does not disclaim that his advisory guideline

range    was        properly     calculated         by        the       district         court.

Additionally,         Kettle’s     counsel         concedes          that        Kettle     was

                                             6
sentenced within this range.                     Finally, Kettle provides no basis

for   rebuttal      of      the    presumption.            Accordingly,          the     district

court    did    not     abuse      its     discretion         in    sentencing         Kettle     to

eighty-seven months’ imprisonment.

               Kettle       raises        two     other       issues       in    his     pro     se

supplemental brief.               First, Kettle contends that his guilty plea

was involuntary, as he did not understand the nature of the

charge    against       him.        The    record,      however,          reflects      that    the

magistrate judge conducted a thorough plea colloquy, wholly in

compliance with Federal Rule of Criminal Procedure 11.                                     During

the colloquy, the magistrate judge explained the nature of the

charge against Kettle, and Kettle affirmed that he understood

the     charge.          The       judge        later     questioned           whether     Kettle

understood      the     pending      charge        against         him,   and    Kettle        again

affirmed that he did.               Accordingly, as a defendant is bound by

his     prior     sworn      statements           in    the    absence          of     clear     and

convincing evidence to the contrary, we find that this issue is

without merit.           See Blackledge v. Allison, 431 U.S. 63, 73-74

(1977); United States v. Lemaster, 403 F.3d 216, 221 (4th Cir.

2005)    (courts      can    rely     on    statements         made       in    open    court    at

subsequent collateral proceedings).

               Finally, Kettle contends that his attorney failed to

make a reasonable effort to explain to Kettle the meaning of the

Anders    brief       and    notice,       in     violation         of    United       States    v.

                                                  7
Santiago, 495 F.3d 27, 30 (2d Cir. 2007).                                 In Santiago, the

Second Circuit held that, where a defendant may be illiterate,

Anders notice documents alone are insufficient to apprise the

defendant      of    the     substance          of     the      Anders        brief      and    the

defendant’s right to oppose it, without some additional effort

“to ensure that their contents are communicated to the defendant

orally.”      Id.     Nevertheless, as Kettle is literate and filed a

pro   se    brief    in    response       to    his       counsel’s      Anders       brief     and

notice,      Santiago      is    inapplicable             and   this     issue     is     without

merit.

              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 Kettle, in writing, of the right to

petition     the    Supreme       Court    of       the    United       States     for    further

review.       If    Kettle       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 Kettle.

              We dispense with oral argument because the facts and

legal      contentions      are    adequately             presented      in    the     materials




                                                8
before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                    AFFIRMED




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