                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-4163


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

MICHAEL JAMALL YORK, a/k/a Michael Kashim York,

                Defendant – Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:07-cr-00176-JAB-1)


Submitted:   April 30, 2010                   Decided:   May 25, 2010


Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


J. David James, SMITH JAMES ROWLETT & COHEN, L.L.P., Greensboro,
North Carolina, for Appellant.      Anna Mills Wagoner, United
States Attorney, Lisa B. Boggs, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Michael    Jamall     York       appeals    his     sentence        after

pleading guilty to being a felon in possession of a firearm in

violation    of   18    U.S.C.   §§ 922(g)(1),      924(a)(2)          (2006).     On

appeal, he contends that the district court erred in applying

the sentencing guidelines, and his sentence is procedurally and

substantively unreasonable, because the district court ordered

that his sentence run consecutive to an undischarged term of

state imprisonment without discussing or considering the policy

statement and factors under 18 U.S.C. § 3553(a)(5) (2006); U.S.

Sentencing Guidelines Manual § 5G1.3(c) (2007).                  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.

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, 192 (4th Cir. 2007).

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               In     sentencing,      the        district     court     should       first

calculate the advisory guideline range and give the parties an

opportunity         to     argue      for     whatever        sentence       they     deem

appropriate.           United States v. Pauley, 511 F.3d 468, 473 (4th

Cir.    2007).           The    district     court    should     then    consider      the

relevant 18 U.S.C. § 3553(a) (2006) factors to determine whether

they support the sentence requested by either party.                           Id.     When

rendering a sentence, the district court must make and place on

the record an individualized assessment based on the particular

facts of the case.             Carter, 564 F.3d at 328, 330.

               In   explaining       the    chosen    sentence,        the   “sentencing

judge should set forth enough to satisfy the appellate court

that he has considered the parties’ arguments and has a reasoned

basis for exercising his own legal decisionmaking authority,”

but     when    the      district     court       decides    simply     to    apply     the

guidelines,         “doing      so   will    not    necessarily       require     lengthy

explanation.”          Rita v. United States, 551 U.S. 338, 356 (2007).

Where    a     party     “presents    nonfrivolous          reasons    for   imposing    a

different sentence, however, the judge will normally go further

and explain why he has rejected those arguments.”                            Id. at 357.

While a district court must consider the statutory factors and

explain its sentence, it need not explicitly reference § 3553(a)

or discuss every factor on the record, particularly when the

district court imposes a sentence within a properly calculated

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guideline range.          United States v. Johnson, 445 F.3d 339, 345

(4th Cir. 2006).

               The probation officer determined that York’s guideline

range was 92 to 115 months based on an offense level of twenty-

three    and    criminal    history      category   VI.     Because       York   had

accumulated twenty-one criminal history points even though many

of his convictions were not counted, and he had failed to ever

obtain stable employment, the probation officer recommended a

sentence       at   the   high    end    of   the   guideline     range    to    run

consecutive to York’s undischarged term of state imprisonment he

was then serving for unrelated conduct.                The probation officer

also noted an upward departure under USSG § 4A1.3(a)(1) may be

warranted; the projected release date on his undischarged state

sentence was August 3, 2010; and that under USSG § 5G1.3(c), the

district court could order that his sentence run concurrent,

partially concurrent, or consecutive to the state sentence to

achieve a reasonable punishment for the instant offense.

               At sentencing, York withdrew his only objection to the

presentence report.          The district court adopted the guideline

calculations and invited York to present “any other factors” he

wanted    to    present.         York   acknowledged   he   had    an     extensive

criminal history and noted it was impacting not only the time he

was then serving but also the instant charge by bringing his

guideline range close to the statutory maximum of 120 months.

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Counsel argued that a letter written by York demonstrated that

he was “trying to make amends and direct himself to learning

some   new   vocations        and    habits,”            and    he    requested         that   the

district     court     consider       the       “lower         end”   of    the    guidelines

“knowing full well he must serve the state court sentence and

then he must start serving the federal court sentence.”

             The Government argued that there were grounds for an

upward   departure      under       USSG    § 4A1.3(a)(1)             because      York       began

committing    crimes       at   the       age       of    seventeen        and    consistently

continued     to     commit     offenses;           and    even       though      he    was    not

assessed criminal history points for many of his crimes, he had

well above the number of points needed for a criminal history

category     VI.      In   lieu      of     departing           upward,     the        Government

requested that the district court sentence York at the highest

end of his guideline range and run the sentence consecutive to

his undischarged state sentence for an unrelated offense.                                     After

the Government spoke, the district court asked York if he had

anything further, and he responded, “No, Your Honor.                               Again, the

focus of the request to the Court is the same and hope the Court

would look at any possibility of concurrent sentences.”

             The district court sentenced York at the lower end of

his 92 to 115-month guideline range to 100 months in prison

consecutive to his undischarged state prison term for unrelated

conduct, explaining that this sentence was “sufficient, but not

                                                5
greater than necessary, to meet the sentencing objectives of

punishment and deterrence in this case.”                         In arriving at this

sentence, the court explained it had taken “the guidelines into

account    on    an    advisory      basis”;       had    “taken   into       account    the

Government’s      position         paper    in     this   case   to    the     extent    the

Defendant would be subject to an upward departure should the

Court be inclined to do so given Defendant’s extensive criminal

history    record”;         and    had     taken    “all    matters      into    account,

including reviewing the presentence report with respect to the

Defendant’s history and characteristics and as well as reviewing

the Defendant’s own letter where he expresses remorse.”

            On appeal, York argues that the district court erred

in applying the sentencing guidelines, and that his sentence is

procedurally          and    substantively           unreasonable,           because     the

district court did not explicitly consider or discuss the policy

statement and accompanying factors set out in the commentary

pursuant   to    18     U.S.C.      § 3553(a)(5);         USSG   § 5G1.3(c)       when   it

ordered that his sentence run consecutive to his undischarged

state sentence.         Because York neither cited the policy statement

in the district court nor argued that the district court should

run the instant sentence concurrent to his undischarged state

prison    term    based       on    the     policy       statement,     we    review     his

procedural sentencing claims for plain error.                         See United States

v. Lynn, 592 F.3d 572 (4th Cir. 2010); United States v. Rouse,

                                              6
362 F.3d 256 (4th Cir. 2004).                  As we explained in Lynn, a party

is    not   required     to   lodge       an       explicit   objection    after    the

district court’s explanation to preserve a claim that the court

provided inadequate explanation for its sentence.                      Rather, “[b]y

drawing arguments from § 3553 for a sentence different than the

one ultimately imposed, an aggrieved party sufficiently alerts

the    district    court       of     its          responsibility     to   render    an

individualized explanation addressing those arguments, and thus

preserves its claim.”          Lynn, 592 F.3d at 578.               However, “lodging

one specific claim of procedural sentencing error before the

district court, e.g., relying on certain § 3553 factors, does

not    preserve    for    appeal      a        different      claim   of   procedural

sentencing error, e.g., relying on different § 3553 factors.”

Id. at 579 n.4.        Since York did not cite the policy statement in

the district court or argue that the instant sentence should run

concurrent    to   his    undischarged             sentence   based   on   the   policy

statement, he did not preserve his procedural sentencing claims.

             Therefore, York must show that the district court’s

explanation in this case constituted plain error affecting his

substantial rights.           See United States v. Massenburg, 564 F.3d

337, 342-43 (4th Cir. 2009).              We conclude that York has not made

this showing.      We further conclude that York’s sentence is not

substantively unreasonable.               Based on its consideration of all

matters, including its review of the presentence report, York’s

                                               7
own    letter    expressing    remorse,       and   the    Government’s       argument

that    York’s    extensive      criminal      history     warranted     an    upward

departure,      the   district    court       granted     York’s   request      for    a

lower-end guideline sentence, rejected the Government’s request

for a high-end guideline sentence, but granted its request to

impose    the    sentence    consecutive       to   York’s      undischarged     state

sentence.       This decision was consistent with USSG § 5G1.3(c), as

it resulted in a reasonable punishment for the instant offense.

            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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