                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-5119


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

ERNEST PERRY,

                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-00399-HEH-1)


Submitted:   September 10, 2010           Decided:   October 29, 2010


Before KING, AGEE, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Mary E. Maguire,
Assistant Federal Public Defender, Richmond, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, Stephen W.
Miller, Assistant United States Attorney, Richmond, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Ernest Perry appeals his sentence of 115 months in

prison       and   eight    years   of   supervised   release    after     pleading

guilty to distributing five grams or more of cocaine base within

1000 feet of a school, in violation of 21 U.S.C. §§ 841, 860

(2006).        On appeal, Perry contends that his 115-month prison

sentence is substantively unreasonable, because it is greater

than necessary to meet the purposes of sentencing. *                 We affirm.

               We review a sentence imposed by the district court

under a deferential abuse-of-discretion standard.                    See 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

and giving “due deference to the district court’s decision.”


       *
       Although he is represented by counsel, Perry has filed a
pro se letter with this court requesting that we apply the “new
guideline crack amendments” to his case.      However, Perry was
properly sentenced based on the guidelines in effect at the time
that he was sentenced. See 18 U.S.C. § 3553(a)(4) (2006); U.S.
Sentencing Guidelines Manual § 1B1.11(a) (Nov. 2009).



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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).

             The   district     court    properly      determined      that    Perry’s

guideline range was 92 to 115 months based on a total offense

level of twenty-three and criminal history category VI.                          Perry

had seventeen criminal history points, even though many of his

prior crimes were not assessed any points.                      Perry requested a

sentence at the low end of the guideline range based on three

reasons:     the crack/powder disparity; “the fact that while the

criminal     history      in   this   case     is   lengthy,    Mr.    Perry’s    most

serious/violent crimes occurred when he was a juvenile”; and his

post-offense rehabilitation while incarcerated.

             After   hearing      from    the   parties,   the    district       court

commended Perry for the significant progress he had made while

incarcerated, but explained that based on his criminal history,

the court was not convinced of the likelihood that he would be

rehabilitated as a result of a sentence at the low end of the

guideline range.       Moreover, the fact that he had been the one to

request that the drug transaction take place within 1000 feet of

a school was another negative consideration.                    Having considered

the   guidelines     as    advisory      and    the   factors    under    18   U.S.C.

§ 3553(a) (2006), the district court determined that a 115-month

sentence was adequate but not longer than necessary to promote

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respect     for       the        law,   provide        deterrence,       and     protect    the

community.        The district court further explained that while an

upward    variance          or    departure       may    have   been     warranted    in    his

case, the court had decided not to sentence him outside his

guideline      range        in     light     of    his    attorney’s       representations

regarding       the    progress         he    had       made    during     his     period    of

confinement.

               On appeal, Perry argues his sentence is substantively

unreasonable because it is greater than necessary to serve the

purposes of sentencing.                 Specifically, he contends the district

court gave excessive weight to his prior convictions and “never

seemed    to    consider           or   acknowledge        that    Mr.    Perry’s     violent

conduct occurred when he was a juvenile, almost twenty years

prior.”     However, as noted by the Government, Perry continued to

commit violent crimes after becoming an adult, including                                    his

convictions       for        breaking        and       entering,     robbery,       malicious

wounding, and assault on a family member.                          Moreover, even though

none of his juvenile offenses were assessed criminal history

points, Perry still had seventeen points, and the district court

was not limited to considering his violent offenses.

               Perry also argues the district court was “dismissive

of arguments made by counsel concerning the fact that this was a

crack case involving only 5.1 grams of crack cocaine” and “never

explained in detail why a sentence of 115 months instead of a

                                                   4
sentence of 92 months was required in this case.”                      However, the

Government argued that this was a serious offense because it

took place at a school putting children at risk, distribution of

crack cocaine was a significant problem in the area, and other

violent crimes were associated with the offense.                       The district

court   explained   the    fact     that       Perry   requested     that    the    drug

transaction take place at a school was a negative consideration,

that the court was not convinced he would be rehabilitated as a

result of a sentence at the low end of the guidelines, and the

court believed a 115-month sentence was adequate but not longer

than    necessary   to    promote    respect       for   the   law,    provide      for

deterrence, and protect the community.                   Based on a totality of

the    circumstances,     and   giving     due     deference    to    the     district

court’s decision, we conclude that the sentence is reasonable.

            We therefore affirm the district court’s judgment.                       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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