                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 09-5146


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

WESLEY DEVON FOOTE,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   N. Carlton Tilley,
Jr., Senior District Judge. (1:06-cr-00177-NCT-1)


Submitted:   August 12, 2010             Decided:   September 14, 2010


Before NIEMEYER, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Louis C. Allen, Federal Public Defender, William C. Ingram,
First Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant.     Anna Mills Wagoner, United States
Attorney, Randall S. Galyon, Assistant United States Attorney,
Julie   Ann  Daniel,   Third-Year   Law   Student,  Wake Forest
University, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Wesley      Devon      Foote    pled    guilty      to     three   counts    of

distributing cocaine base (crack) and was sentenced in 2006 to a

term    of    262    months      imprisonment.          We    affirmed     his   sentence;

however, the Supreme Court vacated the judgment and remanded his

case for reconsideration in light of Kimbrough v. United States,

552 U.S. 85 (2007) (holding that sentencing court may consider

crack/powder cocaine sentencing ratio as basis for variance).

See United States v. Foote, 249 F. App’x 967 (4th Cir. 2007)

(No. 07-4129), vacated, 552 U.S. 1163 (2008).                             On remand from

the Supreme Court, we vacated Foote’s sentence and remanded for

resentencing “[t]o give the district court the opportunity to

reconsider         the    sentence     in     light     of    Kimbrough[.]”          United

States v. Foote, 276 F. App’x 307 (4th Cir. 2008) (No. 07-4139).

The district court again declined to vary below the guideline

range and reimposed the same term of 262 months imprisonment.

              On    appeal,       Foote      contends    that      the    district   court

erred    in    one       of    two   ways;     either        by   not    recognizing      its

“discretion to determine what the appropriate ratio should be

between crack and powder cocaine,” or by refusing to exercise

its discretion.               He also suggests that the district court did

not    adequately        explain      its    reasons     for      not    granting    him   a

downward variance.             We affirm.



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             We review a sentence for reasonableness under an abuse

of discretion standard.          Gall v. United States, 552 U.S. 38, 51

(2007).      Generally,       this   requires        us   to    assess    whether    the

district     court      properly     calculated           the    guidelines      range,

considered the 18 U.S.C. § 3553(a) (2006) factors, analyzed any

arguments presented by the parties, and sufficiently explained

the selected sentence.          Id. at 49-50; see United States v. Lynn,

592   F.3d    572,      576   (4th    Cir.      2010)      (“[A]n       individualized

explanation must accompany every sentence.”); United States v.

Carter, 564 F.3d 325, 330 (4th Cir. 2009).                      We must also review

the substantive reasonableness of the sentence, examining “the

totality     of   the   circumstances     to     see      whether       the   sentencing

court abused its discretion in concluding that the sentence it

chose satisfied the standards set forth in § 3553(a).”                           United

States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010).

             However,    we    remanded       this   case       after    Kimbrough   was

decided solely to afford the district court an opportunity to

decide whether it wished to vary in light of Kimbrough.                              The

district court’s comments during the resentencing leave no doubt

that it understood its discretion to vary below the guideline

range based on the crack-to-powder cocaine ratio.                             The court

decided not to vary and explained that it wished to leave to

Congress the decision as to what the proper sentencing ratio

should be.        We are satisfied that the district court exercised

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its     discretion,     complied    with       its    mandate    on    remand,     and

adequately explained its decision.

               We   therefore    affirm       the    sentence    imposed     by    the

district    court.      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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