                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4036


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JULIUS ERVIN UNDERHILL, a/k/a Devin Michael Hightower, a/k/a
E,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(4:08-cr-00056-TLW-1)


Submitted:   July 26, 2010                 Decided:   August 23, 2010


Before WILKINSON, GREGORY, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James T. McBratney, Jr., MCBRATNEY LAW FIRM, P.A., Florence,
South Carolina, for Appellant.    Alfred William Walker Bethea,
Jr., Assistant United States Attorney, Florence, South Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Julius      Ervin     Underhill        appeals         his    sentence      to    262

months   in    prison       and   five    years          of   supervised       release      after

pleading guilty to using and carrying a firearm during and in

relation to a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c)(1)(A) (2006).                 Underhill’s attorney has filed a brief

pursuant      to    Anders        v.     California,           386     U.S.       738    (1967),

asserting, in his 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 accepting Underhill’s

guilty plea, and whether his sentence is reasonable.                                    Underhill

has filed a pro se supplemental brief raising the issues of

whether his counsel was ineffective for failing to argue for a

sentence reduction under Kimbrough v. United States, 552 U.S. 85

(2007), and whether the district court abused its discretion by

applying the crack cocaine guideline as mandatory.                                We affirm.

              Appellate counsel first questions whether the district

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

guilty   plea,      but     he    concludes         that      the    district      court    fully

complied with the rule.                 Because Underhill did not move in the

district      court    to    withdraw      his       guilty         plea,    we    review      this

challenge for plain error.                 See United States v. Martinez, 277

F.3d 517, 525 (4th Cir. 2002).                      Thus, it is Underhill’s burden

to   show     (1)     error;      (2)    that       is     plain;      (3)    affecting        his

                                                2
substantial rights; and (4) we should exercise our discretion to

notice the error.        Id. at 529.          To show his substantial rights

were affected, Underhill must demonstrate that absent the error,

he would not have entered his guilty plea.                Id. at 532.           We may

consider the entire record to determine the effect of any error.

See United States v. Vonn, 535 U.S. 55, 74-75.                 We have reviewed

the record and conclude that Underhill has failed to show any

plain error affecting his substantial rights.

             Appellate counsel next questions whether Underhill’s

sentence is reasonable, but he concludes that the sentence is

within a properly calculated guideline range and reasonable.                        We

review   a   sentence    for    abuse   of     discretion.      Gall       v.   United

States, 552 U.S. 38, 51 (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

guideline range, failing to consider the 18 U.S.C. § 3553(a)

(2006) factors, or failing to adequately explain the sentence.

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

then   consider    the   substantive     reasonableness        of    the    sentence

imposed, taking into account the totality of the circumstances.

Gall, 552 U.S. at 51.           On appeal, 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).



                                         3
             We    have   reviewed         the    record    and    conclude      that    the

district     court      did    not    abuse       its    discretion       in    sentencing

Underhill, and his sentence is reasonable.                        Because Underhill is

a   career   offender,        and    the    § 924(c)      conviction      was    the    only

count of conviction, the district court properly determined the

applicable guideline range using the table in U.S. Sentencing

Guidelines Manual § 4B1.1(c)(3) (2007).                       Thus, after a three-

level   reduction       for    acceptance         of    responsibility,        Underhill’s

guideline range was 262 to 327 months in prison.

             At sentencing, Underhill acknowledged he was a career

offender but requested a variance sentence based on his mother

leaving him with his grandmother when he was four years old, and

his contention that his prior felony convictions for assault and

battery of a high and aggravated nature over-represented the

underlying facts of conviction.                   The district court determined a

variance was not appropriate based on the particulars of his

prior violent crimes, but the court considered the mitigating

factors argued by Underhill’s attorney and selected a sentence

at the bottom of the guideline range based on the arguments.

The court considered the § 3553(a) factors, made and placed on

the   record      an   individualized        assessment       of    the   facts    in    the

case, and adequately explained its decision.

             Finally, we conclude that Underhill’s pro se arguments

are without merit.             The district court did not sentence him

                                              4
based on the crack cocaine guideline, and the record does not

conclusively show ineffective assistance.                 See United States v.

Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).

            In accordance with Anders, we have reviewed the entire

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 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




                                        5
