                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-4522



UNITED STATES OF AMERICA,

                      Plaintiff - Appellant,

          v.


DERRY DREW PYLES,

                     Defendant - Appellee.



     On Remand from the Supreme Court of the United States.
                      (S. Ct. No. 07-5497)


Submitted:   February 12, 2008                 Decided:   April 4, 2008


Before WILLIAMS, Chief Judge, and NIEMEYER and KING, Circuit
Judges.


Affirmed by unpublished per curiam opinion.


Zelda Elizabeth Wesley, OFFICE OF THE UNITED STATES ATTORNEY,
Clarksburg, West Virginia, Rita R. Valdrini, OFFICE OF THE UNITED
STATES ATTORNEY, Wheeling, West Virginia, for Appellant.    James
Bryan Zimarowski, Morgantown, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Derry Drew Pyles was sentenced to a term of five years

probation with six months home confinement following his plea of

guilty to one count of aiding and abetting the distribution of

crack cocaine, in violation of 21 U.S.C.A. § 841 (West 1999 & Supp.

2007).    On appeal, we reversed Pyles’s sentence, explaining that,

although we “appreciate[d] the thoughtfulness” of the district

court’s opinion, given that Pyles’s advisory Guideline range was 63

to 78 months imprisonment, a sentence of probation, did “not

reflect the seriousness of Pyles’s offense or provide a just

punishment.”    United States v. Pyles, 482 F.3d 282, 283 (4th Cir.

2007).     The United States Supreme Court granted Pyles’s petition

for certiorari, vacated our earlier opinion, and remanded the case

to our court for further consideration in light of Gall v. United

States, 128 S. Ct. 586 (2007).   Pyles v. United States, 76 U.S.L.W.

3343 (U.S. Jan 7, 2008).       Applying the “deferential abuse-of-

discretion standard” mandated by Gall, 128 S. Ct. at 591, we now

affirm Pyles’s sentence.



                                  I.

        The facts are sufficiently set forth in our earlier opinion,

see Pyles, 482 F.3d at 283-86, and we only briefly revisit them

here.




                                   2
     During the late spring and early summer of 2004, Pyles came to

the attention of West Virginia State Police investigators who were

looking into crack-cocaine distribution in the area of Morgantown,

West Virginia.          As part of this investigation, an undercover

officer purchased $100 quantities of crack cocaine at Pyles’s home

on several occasions in June 2004.

     On March 1, 2005, a federal grand jury in the Northern

District   of    West     Virginia    indicted        Pyles,   charging         him   with

conspiracy to distribute in excess of five grams of cocaine base

(“crack cocaine”), in violation of 21 U.S.C.A. §§ 846 (West 1999 &

Supp.   2006)    and      841(b)(1)(B)(iii),          and   with    three   counts     of

distributing .15, .23, and .33 grams of crack cocaine (reflecting

the controlled buys by the undercover officer), in violation of

§§ 841(a)(1), (b)(1)(C).             On May 6, 2005, pursuant to a plea

agreement with the Government, Pyles pleaded guilty to one count of

aiding and abetting the distribution of .23 grams of crack cocaine,

in violation of 21 U.S.C.A. §§ 841(a)(1), (b)(1)(C).

     In the presentence report (“PSR”) prepared by the probation

officer for sentencing, Pyles’s total Guideline offense level was

calculated      as   25     based    upon       the   amount       of   crack    cocaine

attributable to him and taking into account a three-level reduction

for his acceptance of responsibility.                 Considering Pyles’s various

adult criminal convictions, the PSR determined that Pyles fell




                                            3
within a criminal history category of II.1   With this offense level

and criminal history, the district court correctly calculated

Pyles’s advisory Guidelines range as 63 to 78 months imprisonment.

     The district court ultimately sentenced Pyles to five years

probation with six months home confinement. In Pyles, we explained

the district court’s rationale as follows:

          On April 24, 2006, the district court entered a
     Judgment in a Criminal Case and included a twenty-two
     page statement explaining its reasons for imposing a
     variance sentence of probation.         The well-written
     statement analyzed in detail how the facts of Pyles’s
     case comported with the sentencing factors of § 3553(a).
     Starting with the factor of § 3553(a)(1), “the nature and
     circumstances of the offense and the history and
     characteristics of the defendant,” the district court
     stated that “Pyles’[s] history and characteristics were
     determinative. His personal rehabilitative efforts both
     pre- and post-conviction have been extraordinary, and
     beyond anything seen in other criminal cases this judge
     has handled during almost fourteen years of criminal
     sentencing under the guidelines.” (J.A. at 137.) The
     district court observed that Pyles abruptly stopped using
     drugs more than six months before he was indicted and
     that Pyles had continued on a path of rehabilitation by
     proving himself to be a good employee, repaying past
     debts, rectifying a DUI offense, and abstaining from
     drugs.
          The district court recognized that, while Pyles’s
     rehabilitation was extraordinary, his drug distribution
     offense was serious.     See 18 U.S.C.A. § 3553(a)(1)
     (requiring sentencing courts to consider the “nature and
     circumstances of the offense”). In fact, the district
     court concluded that the one count of aiding and abetting
     distribution to which Pyles pleaded guilty did not


     1
      The PSR included in Pyles’s criminal history determination
his two convictions for driving under the influence (“DUI”) and one
conviction for domestic battery.      Pursuant to U.S. Sentencing
Guidelines Manual, § 4A1.2(c) (2004), the PSR excluded from Pyles’s
criminal history determination two convictions for driving while
his license was revoked for DUI.

                                4
actually reflect the extent or seriousness of Pyles’s
offense.   As the court explained, “Pyles’ offense was
part of a quintessential crack case involving a
significant amount of a dangerous drug, multiple sales,
and numerous people.” (J.A. at 145.)
     With these facts in mind, the district court then
proceeded to consider the need for Pyles’s sentence “(A)
to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for
the offense; (B) to afford adequate deterrence to
criminal conduct; (C) to protect the public from further
crimes of the defendant; and (D) to provide the defendant
with needed educational or vocational training, medical
care, or other correctional treatment in the most
effective manner.”      18 U.S.C.A. § 3553(a)(2).     The
district court concluded that “a sentence of probation
will allow Pyles to complete valuable vocational training
and take advantage of available opportunities for
advancement at work in the most effective manner.” (J.A.
at 146 (citing § 3553(a)(2)(D)).) Because Pyles had been
monitored for drug use and tested negative at every
screening during the six months prior to his indictment,
the district court concluded that “incarceration is not
necessary to protect the public from further crimes by
Pyles, (18 U.S.C. § 3553(a)(2)(C)), and a sentence of
probation    that    includes   home   confinement   will
sufficiently restrict his freedom to deter any risk of
future criminal conduct. (18 U.S.C. § 3553(a)(2)(B)).”
(J.A. at 147.)      Although it noted that aiding and
abetting the distribution of crack cocaine was a serious
offense, the district court concluded that a variance
sentence of 5 years’ probation was sufficient, but not
greater than necessary, to punish Pyles for his offense.
     Finally, the district court considered whether the
variance sentence would create “unwarranted sentence
disparities among defendants with similar records who
have been found guilty of similar conduct.” 18 U.S.C.A.
§ 3553(a)(6).     Although expressly acknowledging that
Pyles’s variance sentence would indeed create a
sentencing disparity relative to other defendants
convicted of distributing crack cocaine, the district
court concluded that the disparity was warranted because
of Pyles’s unique rehabilitation.        (J.A. at 149-50
(“[I]ncarceration [of Pyles] would be a gross mistake, a
warehousing effort that would be a poor substitute for
the positive rehabilitative influence Pyles has found in
work, counseling, and education outside the correctional
system.”).)

                           5
          Having determined that a variance sentence was
     warranted under § 3553(a), the district court analyzed
     whether the extent of the variance sentence was justified
     by comparing Pyles’s case with our decision in United
     States v. Moreland, 437 F.3d 424 (4th Cir. 2006), which
     vacated a variance sentence because the extent of the
     variance –- a reduction from 360 months to 120 months’
     imprisonment –- was unreasonable.      Id. at 437.    The
     district court observed that in Moreland the extent of
     the variance was unreasonable because the defendant in
     that case was a repeat drug offender and because the
     defendant’s “‘desultory pursuit of his education and his
     spotty employment history . . . can provide little
     confidence in his willingness to become a productive
     member of society, irrespective of his ability to do
     so.’” (J.A. at 151 (quoting Moreland, 437 F.3d at 437.).)
     By contrast, the district court concluded that Pyles was
     unlike the defendant in Moreland because Pyles was “not
     a repeat drug offender.” (J.A. at 151.) Further, unlike
     the defendant in Moreland, Pyles not only “exhibited a
     willingness to become a productive member of society . .
     . he has achieved that goal.” (J.A. at 152.) For these
     reasons, the district court concluded that it was
     reasonable to impose a variance sentence of 5 years’
     probation with a condition of 6 months’ home confinement.

Pyles, 482 F.3d at 285-86 (alteration in original).



                                      II.

                                      A.

     The Gall Court reiterated that appellate review of sentencing

decisions should follow a two-step process.                   First, a reviewing

court   should     “ensure    that   the     district    court      committed    no

significant      procedural    error.”        Gall,     128    S.   Ct.   at    597.

Significant procedural errors can include failure to calculate a

proper Guidelines range, or failure to consider the § 3553(a)

factors.   Id.      If the district court’s decision is free from


                                         6
significant procedural errors, “the appellate court should then

consider the substantive reasonableness of the sentence imposed

under an abuse-of-discretion standard” by looking to the “totality

of the circumstances, including the extent of any variance from the

Guidelines range.”    Id.    “If the sentence is within the Guidelines

range, the appellate court may, but is not required to, apply a

presumption of reasonableness.”       Id.

      In reviewing sentences outside the Guidelines range, the

appellate court “may not apply a presumption of unreasonableness.”

Id.   In addition, although an appellate court “may consider the

extent of the deviation,” it “must give due deference to the

district court’s decision that the § 3553(a) factors, on a whole,

justify the extent of the variance.”        Id.

                                    B.

      As we noted in our earlier opinion, “[t]here is no contention

that Pyles’s sentence is procedurally unreasonable.”             Pyles, 482

F.3d at 288.     Thus, our inquiry is limited to the substantive

reasonableness   of   Pyles’s    sentence   of    five   years   probation.

Applying our “deferential abuse-of-discretion standard,” Gall 128

S. Ct. at 591, we conclude that the sentence was reasonable.             We

start by reiterating that the district court “included a twenty-two

page statement” of reasons that was “well-written” and “analyzed in

detail how the facts of Pyles’s case comported with the sentencing

factors of § 3553(a).”      Pyles, 482 F.3d at 285.      The district court


                                     7
also “recognized          that . . . [Pyles’s] drug distribution offense

was serious.”       Id.

     In addition, we note that Gall offered guidance on several

fronts that is useful in deciding this case.                     First, in Gall, the

defendant,       whose    advisory     Guidelines       range      was    30-37       months

imprisonment, was sentenced to 36 months probation.                        Gall, 128 S.

Ct. at 593.      In approving this sentence, the Gall Court noted that

“§ 3553(a)(3) directs the judge to consider sentences other than

imprisonment,”           id.   at    602,     and,    while      “recogniz[ing]         that

custodial sentences are qualitatively more severe than probationary

sentences of equivalent terms,” the Court nevertheless concluded

that “[o]ffenders on probation are nonetheless subject to several

standard conditions that substantially restrict their liberty.”

Id. at 595.

     Next, the Gall Court rejected (1) “an appellate rule that

requires    ‘extraordinary’          circumstances       to      justify    a   sentence

outside    the    Guidelines        range;”     and   (2)   “the    use    of     a    rigid

mathematical formula that uses the percentage of a departure as the

standard    for    determining        the     strength      of    the    justifications

required for a specific sentence.”                Id. at 595.

     Finally, in Kimbrough v. United States, 128 S. Ct. 558 (2007),

the Court held that “it would not be an abuse of discretion for a

district court to conclude when sentencing a particular defendant

that the crack/powder disparity yields a sentence ‘greater than


                                            8
necessary’ to achieve § 3553(a)’s purposes, even in a mine-run

case.”     Id. at 575.2

     Giving    due   deference      to   the    district     court’s     sentencing

decision, we cannot say that the district court’s treatment of

Pyles’s case yielded an unreasonable sentence.                The Gall Court has

reminded     us    that      probation,        although    less        severe    than

incarceration, is not a “get-out-of-jail free card” either. Pyles,

482 F.3d at 292 (internal quotation marks omitted).                     Moreover, a

proportional      analysis    of   the   type    we   applied     in    our   earlier

opinion,     requiring    more     compelling      reasons    the      greater   the

variance, is no longer appropriate.              See Gall, 128 S. Ct. at 595.

Finally, the simple fact that Pyles pleaded guilty to a crack

cocaine offense does not, alone, mandate a more serious sentence.

Kimbrough, 128 S. Ct. at 575.

     In this case, the district court correctly calculated the

advisory Guidelines range, considered the factors listed in §

3553(a), and entered its sentence in the course of a twenty-two

page written opinion.        In so doing, it did not abuse its discretion

in sentencing Pyles to five years probation with six months home

confinement.


     2
      Indeed, in United States v. Pyles, 482 F.3d 282 (4th Cir.
2007), we relied upon United States v. Eura, 440 F.3d 625 (4th Cir.
2006) for the proposition that “‘Congress has made a decision to
treat crack cocaine dealers more severely’ than dealers of other
drugs, such as powder cocaine.” Pyles, 482 F.3d at 291 (quoting
Eura, 440 F.3d at 633). Eura, however, was abrogated by Kimbrough
v. United States, 128 S. Ct. 558, 566 n.4 (2007).

                                         9
                             III.

    Accordingly, for the foregoing reasons, the judgment of the

district court is

                                                      AFFIRMED.




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