                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4265


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

TYREE LAMAR SLADE, a/k/a Ovious Mcfly,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Abingdon.      James P. Jones, Chief
District Judge. (1:08-cr-00024-jpj-pms-5)


Submitted:   March 4, 2010                 Decided:   March 25, 2010


Before MOTZ, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James Gordon Hunter, III, O’KEEFFE & SPIES, Lynchburg, Virginia,
for Appellant.      Zachary T. Lee, Assistant United States
Attorney, Abingdon, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Tyree           Lamar    Slade     pled       guilty      to     one        count   of

conspiracy       to     possess      and    distribute         fifty    grams       or    more   of

cocaine     base      and     five    hundred          grams   or   more    of    cocaine,       in

violation        of     21    U.S.C.       § 846       (2006).       The    district         court

sentenced Slade to 300 months in prison.                               On appeal, Slade’s

counsel filed a brief pursuant to Anders v. California, 386 U.S.

738 (1967), stating that he believed there were no meritorious

issues for appeal.              However, at Slade’s request, counsel raised

two   issues       in    the     brief:      (1)       whether      Slade’s      sentence        was

greater than necessary to comply with the purposes set forth in

18 U.S.C. § 3553(a) (2006), and (2) whether the district court

erred      “in    deviating          from     the       guideline      computation          and/or

criminal history category, including but not limited to the plea

agreement” in this case.                Slade has not filed a supplemental pro

se brief, nor has the Government filed a response to the Anders

brief. *    Finding no error, we affirm.


      *
       Slade consented to waive all of his rights to appeal his
sentence and “any and all issues in this matter,” and agreed
that he would not file a notice of appeal. However, because the
Government has not filed a Motion to Dismiss or otherwise
asserted this waiver, this court may undertake a review pursuant
to Anders v. California, 386 U.S. 738 (1967). See United States
v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007) (“If an Anders
brief is filed, the government is free to file a responsive
brief raising the waiver issue (if applicable) or do nothing,
allowing this court to perform the required Anders review.”).



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              When a sentence is challenged on appeal, this court

reviews       the     sentence        for   both        procedural        and      substantive

reasonableness         using     an    abuse       of    discretion        standard.         See

Gall v.    United       States,       552   U.S.        38,    51     (2007).       Procedural

errors include “failing to calculate (or improperly calculating)

the    Guidelines       range,       treating       the       Guidelines      as    mandatory,

failing to consider the § 3553(a) factors, selecting a sentence

based    on    clearly       erroneous      facts,        or        failing   to    adequately

explain the chosen sentence--including an explanation for any

deviation from the Guidelines range.”                         Id.

              Here, Slade argues that the district court erred by

determining that his base offense level was thirty-eight, as

calculated in the presentence report (“PSR”), and not thirty-

seven as determined in the plea agreement.                               Slade is correct

that    his    plea     agreement       specifically            noted     that     the    career

offender Guidelines section, which would have put Slade’s base

offense       level     at     thirty-seven,            was     applicable         to    Slade’s

conduct.            However,     it     also       stated       expressly        that     “other

guideline sections may be applicable” to Slade’s case, and that

both he and the Government were “free to argue whether these

sections should or should not apply; to the extent the arguments

are not inconsistent with the stipulations, recommendations and

terms   set     forth    in    this     plea    agreement.”              Additionally,       the

agreement       contained        a     provision         that        recognized      that   the

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district       court    was        “not    bound     by      any     recommendation         or

stipulation      and     may       sentence       [Slade]      up    to    the     statutory

maximum.”        Slade’s counsel never argued that U.S. Sentencing

Guidelines Manual § 2D1.1(c)(1) (2008) was incorrectly applied

to   Slade     based    on    the    relevant      facts,      but     rather     asked    the

sentencing      court    to    “give       credit”     to    the    base    offense      level

noted in the plea agreement because the resulting sentence would

still be subject to a twenty-year statutory minimum.                                   Because

the PSR determined that Slade was “criminally involved” with

more    than    4.5    kilograms      of     cocaine      base,     the    application      of

§ 2D1.1(c)(1) to determine Slade’s base offense level was not in

error.     The court also allowed the parties to present arguments

as to what they believed was an appropriate sentence, Slade was

given the opportunity to testify, and the court considered the

§ 3553(a) factors and documented an explanation for imposing the

final    sentence.           Thus,     the    district        court       did    not    commit

procedural error in sentencing Slade.

               Slade also challenges the substantive reasonableness

of his sentence, questioning whether the sentence was greater

than     necessary      to     comply      with     the      purposes      set    forth    in

18 U.S.C.      § 3553(a).           However,      the       sentence      was    within    the

properly calculated Guidelines range, and we presume on appeal

that    the    sentence       is    substantively           reasonable.          See    United

States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).                                Moreover,

                                              4
as     noted,     the    sentencing        court          considered      the    factors       in

§ 3553(a) and explained that the sentence was intended to serve

as a deterrent, to provide punishment for the offense, and to

promote respect for the law by having Slade take responsibility

for     his     actions.         As   a    result,          Slade’s      sentence      is     not

substantively unreasonable.

               In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.       We therefore affirm Slade’s conviction and dismiss that

part    of    the    appeal      relating    to       his    sentencing.          This      court

requires that counsel inform Slade, in writing, of the right to

petition      the    Supreme      Court    of       the    United   States       for   further

review.       If Slade 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 Slade.             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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