                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-5028


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

ROGER BERNARD WESLEY,

                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. (1:12-cr-00202-NCT-1)


Submitted:   July 12, 2013                       Decided:   July 23, 2013


Before WYNN and    FLOYD,    Circuit   Judges,    and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Milton Bays Shoaf, ADDISON & SHOAF, Salisbury, North Carolina,
for Appellant. Ripley Rand, 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Unpublished opinions are not binding precedent in this circuit.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:

              Roger     Bernard      Wesley        appeals      his    conviction       and

110-month      sentence       imposed        following         his    guilty     plea    to

possession of a firearm as a convicted felon, in violation of 18

U.S.C.    § 922(g)(1)        (2006).         On    appeal,     Wesley’s     counsel     has

filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), stating that there are no meritorious issues for appeal

but     questioning        whether     the        district     court     committed      two

sentencing errors.            The Government has filed a response brief,

asserting that the district court committed no error and that we

lack authority to review one of the issues raised.                             Wesley has

filed     a   pro     se    supplemental          brief    raising      a   claim     under

Alleyne v. United States, __ U.S. __, 133 S. Ct. 2151, 2155

(2013) (holding that any fact increasing the mandatory minimum

sentence applicable to an offense must be submitted to the jury

and found beyond a reasonable doubt).                          For the reasons that

follow, we affirm.

              We review a sentence imposed by a district court for

reasonableness.            Gall v. United States, 552 U.S. 38, 46, 51

(2007).        We     first    examine        the     sentence        for   “significant

procedural      error,”       including           improper      calculation      of     the

Guidelines      range.         Id.     at     51.         In    assessing      Guidelines

calculations,         we    “review     the        [sentencing]        court’s      factual

findings for clear error, its legal conclusions de novo, and

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unpreserved         arguments          for      plain       error.”             United         States     v.

Strieper, 666 F.3d 288, 292 (4th Cir. 2012) (citations omitted).

If we find the sentence procedurally reasonable, we also examine

its    substantive            reasonableness              under       the       totality          of     the

circumstances.               Gall,      552        U.S.   at    51.         A    within-Guidelines

sentence is presumptively reasonable, and the defendant bears

the burden to rebut this presumption by demonstrating “that the

sentence      is    unreasonable              when    measured        against            the    § 3553(a)

factors.”          United States v. Montes-Pineda, 445 F.3d 375, 379

(4th Cir. 2006) (internal quotation marks omitted).

              Counsel         first      questions          whether         the      district          court

inappropriately              applied      a    four-level         enhancement              for    use     or

possession         of    a    firearm         “in     connection        with         another       felony

offense,” pursuant to U.S. Sentencing Guidelines Manual (“USSG”)

§ 2K2.1(b)(6)(b) (2011).                      Because Wesley withdrew his objection

on this ground in the district court, we review the issue for

plain error.            See Strieper, 666 F.3d at 292.

              A firearm is “used or possessed in connection with

another    offense            if   [it]        facilitates        or    has          a    tendency        to

facilitate the other offense.”                            United States v. Hampton, 628

F.3d   654,    663        (4th     Cir.       2010)       (internal     quotation               marks    and

alteration     omitted);           see        USSG    § 2K2.1     cmt.          n.   14(A).            “This

requirement        is     satisfied           if    the    firearm     had        some         purpose    or

effect    with      respect        to     the       other      offense,         including         if     the

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firearm was present for protection or to embolden the actor.”

United States v. Alvarado Perez, 609 F.3d 609, 612-13 (4th Cir.

2010) (internal quotation marks and alterations omitted).                           The

Guidelines commentary further explains that the enhancement is

appropriate “in the case of a drug trafficking offense in which

a   firearm    is      found        in       close         proximity     to     drugs,

drug-manufacturing materials, or drug paraphernalia.”                         See USSG

§ 2K2.1 cmt. n. 14(B).           Based on the facts admitted in the

written   factual    basis    for    Wesley’s        plea     and   adopted    in   the

presentence report, we discern no error, plain or otherwise, in

the court’s application of this enhancement to Wesley. *

           Counsel    next     questions       whether        the   district     court

should have considered imposing a lower sentence because the

three-level   downward       adjustment       to     his    Guidelines    range     for

acceptance of responsibility, for which he bargained in his plea

agreement, had little impact on his Guidelines range due to the

statutory cap of 120 months applicable to his sentence.                        We find


     *
       In his pro se supplemental brief, Wesley also challenges
this enhancement under the Supreme Court’s recent decision in
Alleyne.   Because neither the enhancement nor its underlying
facts had an impact on the statutory sentencing range applicable
to Wesley’s offense, we conclude, without difficulty, that
Wesley’s argument is meritless. See Alleyne, 133 S. Ct. at 2163
(“Our ruling today does not mean that any fact that influences
judicial discretion must be found by a jury.        We have long
recognized   that  broad   sentencing  discretion,   informed  by
judicial factfinding, does not violate the Sixth Amendment.”).



                                         4
this argument unavailing.                Initially, Wesley cannot claim that

he   did     not       benefit    from     the       acceptance          of     responsibility

adjustment;        but    for    that    adjustment,          Wesley      would      have    been

subject      to    a    Guidelines       range       higher       than    the      sentence   he

received.         Because he received a sentence at the bottom of his

applicable Guidelines range, Wesley effectively argues that the

court erred        in    failing    to    depart          below    the    Guidelines        range

based   on    the      statutory     cap.           However,      we     lack    authority     to

review the court’s decision not to depart downward, as nothing

in the record indicates that “the court failed to understand its

authority to do so.”             See United States v. Brewer, 520 F.3d 367,

371 (4th Cir. 2008).             Nor do we conclude that Wesley’s assertion

serves to rebut the presumption of substantive reasonableness

accorded his within-Guidelines sentence.                          See Montes-Pineda, 445

F.3d at 379.

              In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal.

We therefore affirm the district court’s judgment.                                  This court

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

petition     the       Supreme   Court     of       the   United       States      for   further

review.       If       Wesley    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



                                                5
representation.    Counsel’s motion must state that a copy thereof

was served on Wesley.

            We dispense with oral argument because the facts and

legal    contentions    are   adequately   presented    in   the   materials

before   this   court   and   argument   would   not   aid   the   decisional

process.



                                                                     AFFIRMED




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