                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4218



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


CHARLES A. TRIVETTE,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (CR-04-16)


Submitted:   October 21, 2005          Decided:     December 19, 2005


Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Denzil H. Forrester, Charlotte, North Carolina, for Appellant.
Kimlani S. Murray, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

            Charles A. Trivette appeals the 120-month concurrent

sentences imposed after he pled guilty to possession with intent to

distribute methamphetamine (Count 1), in violation of 21 U.S.C.

§ 841(a)(1) (2000), and to being a felon in possession of a firearm

(Count    3),    in    violation    of    18     U.S.C.   §   922(g)(1)        (2000).*

Trivette’s counsel filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), raising two issues but stating that, in his

view, there are no meritorious issues for appeal.                     Trivette was

informed of his right to file a pro se supplemental brief but has

not done so.      We affirm.

            Counsel      questions       the   reasonableness       of    Trivette’s

sentence in light of United States v. Booker, 125 S. Ct. 738

(2005).         Although   the     Sentencing      Guidelines       are   no    longer

mandatory, Booker makes clear that a sentencing court “must consult

[the] Guidelines and take them into account when sentencing.”                      125

S. Ct. at 767 (Breyer, J., opinion of the Court).               The court should

consider   this       sentencing    range      along   with   the    other     factors

described in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and

then impose a sentence.          See United States v. Hughes, 401 F.3d 540,

546 (4th Cir. 2005) (applying Booker on plain error review).                       The


     *
      Trivette also pled guilty to using and carrying a firearm
during and in relation to a drug trafficking crime, in violation of
18 U.S.C.A. § 924(c) (West 2000 & Supp. 2005), and received a
sixty-month consecutive sentence.     He does not challenge this
portion of his sentence in this appeal.

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sentence must be “within the statutorily prescribed range and . . .

reasonable.”      Id. at 546-47 (citations omitted).

            In    sentencing      Trivette     to   a   120-month   sentence,      a

sentence    one    month    below    the   properly      calculated    Sentencing

Guidelines range of 121 to 151 months of imprisonment, the district

court considered that range and all of the factors in § 3553(a),

taking    into    account   the     ten-year    mandatory    minimum    statutory

sentence on Count 1, see 21 U.S.C.A. § 841(b)(1)(A) (West 1999 &

Supp.    2005),    and   the   ten-year      statutory    maximum     sentence    on

Count 3, see 18 U.S.C. § 924(a)(2) (2000).                  Our review of the

record leads us to conclude that the district court adequately

explained its reason for sentencing Trivette below the advisory

Sentencing Guidelines range.           We therefore find that the sentence

is reasonable.

            Counsel also questions whether the Government engaged in

prosecutorial misconduct when it failed to file a motion for a

downward departure under U.S. Sentencing Guidelines Manual § 5K1.1,

p.s. (2004), based upon Trivette’s substantial assistance.                       The

Government did not promise to make such a motion, and there is no

evidence that it refused to make the motion based upon an improper

motive.    Wade v. United States, 504 U.S. 181, 185-86 (1992).                    We

therefore find nothing improper regarding the Government’s failure

to make the motion.




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            In accordance with Anders, we have reviewed the entire

record     for     any        meritorious     issues        and    have      found

none.    Accordingly, we affirm Trivette’s conviction and sentence.

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 deny counsel’s motion to withdraw and

Trivette’s motion to substitute counsel and 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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