                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 11-4906


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

MARIO MONTAY QUILLER, a/k/a Mecca,

                 Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:10-cr-00295-BR-1)


Submitted:     August 27, 2012            Decided:   September 11, 2012


Before MOTZ, KING, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mary J. Darrow, LAW OFFICE OF MARY JUDE DARROW, Raleigh, North
Carolina, for Appellant.     Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Mario Montay Quiller pled guilty pursuant to a plea

agreement to one count of conspiracy to distribute and possess

with intent to distribute more than fifty grams of cocaine base,

in violation of 21 U.S.C. § 846 (2006), and one count of being a

felon in possession of a firearm, in violation of 18 U.S.C.

§§ 922(g)(1),        924    (2006).        In     exchange      for      his    plea     the

Government     dismissed        the    remaining    six       charges.         On    appeal,

counsel has submitted a brief pursuant to Anders v. California,

386   U.S.     738    (1967),         asserting    there       are    no       meritorious

arguments     for    appeal.          Quiller    filed    a    pro    se   supplemental

brief, asserting that the Rule 11 hearing was flawed because he

was   not    informed      of   the    correct    minimum      or    maximum        sentence

under the Fair Sentencing Act of 2010, Pub.L. No. 111–220, 124

Stat. 2372 (“FSA”).             The Government did not file a brief. *                    We

affirm.




      *
       In the plea agreement, Quiller waived his right to appeal
whatever sentence was imposed.      However, the Government has
elected not to seek enforcement of the waiver.       It is this
court’s policy not to raise the issue sua sponte.         United
States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005) (citing
United States v. Brock, 211 F.3d 88, 90 n.1 (4th Cir. 2000));
see United States v. Poindexter, 492 F.3d 263, 271 (4th Cir.
2007) (stating that, if Anders brief is filed in case with
appeal waiver, the Government’s failure to respond “allow[s]
this court to perform the required Anders review”).



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             After reviewing the record, we conclude that Quiller’s

Rule 11 hearing was sufficient and proper.                  At the time that

Quiller pled guilty, which was after the FSA’s effective date,

the FSA was not being applied retroactively to those defendants

whose criminal conduct occurred prior to the enactment of the

FSA    but   were   sentenced   after    the    FSA’s   effective     date.     At

sentencing, Quiller’s counsel argued that the reduced statutory

sentence contained in the FSA should apply to Quiller.                  In light

of the Attorney General’s revised view that the FSA should apply

retroactively,      the   district    court     agreed.     Quiller    was    thus

exposed to a maximum statutory sentence of forty years instead

of life.

             While the appeal was pending, the Supreme Court ruled

in Dorsey v. United States, 132 S. Ct. 2321, 2335 (2012), that

the FSA was applicable to persons in Quiller’s situation:                      the

criminal conduct occurred prior to the FSA’s effective date but

sentencing occurred after the Act’s effective date.

             Needless to say, Quiller, who successfully argued at

sentencing for the FSA’s reduced statutory penalties, did not

assert at any time before the imposition of sentence that the

Rule    11   hearing   was   flawed     due    to   misinformation    about    the

maximum sentence.         Accordingly, review is for plain error.             See

United States v. Martinez, 277 F.3d 517, 527 (4th Cir. 2002).

Under plain error review, Quiller must show there was error,

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that error was plain, and that error was material or affected

his substantial rights.             Even if he satisfies these conditions,

the court will use its discretion and correct the error only if

the error seriously affects the fairness, integrity or public

reputation of judicial proceedings.                   Id. at 524.         Additionally,

to show that a Rule 11 violation was plain error, Quiller must

demonstrate that he would not have entered the plea.                               Id. at

532.

            We conclude that Quiller’s substantial rights were not

affected.      By virtue of pleading guilty and not proceeding to

trial,   Quiller       received     the     benefit      of   the   dismissal      of   six

counts   and     a    reduced      offense       level    based     on    acceptance     of

responsibility.         Quiller, who had an extensive criminal history,

also faced the possibility of a life sentence for the firearm

conviction if it was found that he was an armed career criminal.

Accordingly, we conclude there was no plain error and affirm

Quiller’s convictions.

            This       court      reviews    a    sentence      for      reasonableness,

applying    an       abuse   of    discretion       standard.         Gall    v.   United

States, 552 U.S. 38, 51 (2007); United States v. Layton, 564

F.3d 330, 335 (4th Cir. 2009).                    In so doing, the court first

examines    the       sentence       for    “significant          procedural       error,”

including “failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing

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

clearly erroneous facts, or failing to adequately explain the

chosen      sentence.”           Gall,     552       U.S.    at    51.        The    court     then

considers the substantive reasonableness of the sentence, taking

into     account         the    totality        of     the     circumstances.                United

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

If    the   sentence       is     within       the    Guidelines            range,    this    court

presumes     on     appeal       that    the     sentence         is   reasonable.           United

States v. Go, 517 F.3d 216, 218 (4th Cir. 2008); see Rita v.

United States, 551 U.S. 338, 346-56 (2007) (permitting appellate

presumption of reasonableness for within-Guidelines sentence).

              We     conclude           that      the        district         court     properly

determined         the    Guidelines        sentence.              With       respect    to     the

district court’s explanation of the sentence, “[r]egardless of

whether the district court imposes an above, below, or within-

Guidelines         sentence,        it     must         place          on     the     record     an

individualized assessment based on the particular facts of the

case before it.”               United States v. Carter, 564 F.3d 325, 330

(4th Cir. 2009) (internal quotation marks omitted); see Gall,

552 U.S. at 50.                The reasons articulated for a given sentence

need not be “couched in the precise language of [18 U.S.C.]

§ 3553(a),” so long as the “reasons can be matched to a factor

appropriate for consideration . . . and [are] clearly tied [to

the    defendant’s]            particular        situation.”                United    States     v.

                                                 5
Moulden,   478   F.3d    652,     658    (4th      Cir.    2007).       The   district

court’s explanation need not be extensive, so long as this court

is   satisfied    “‘that    the     district         court      has   considered     the

parties’ arguments and has a reasoned basis for exercising its

own legal decisionmaking authority.’”                     United States v. Engle,

592 F.3d 495, 500 (4th Cir.) (quoting Rita, 551 U.S. at 356

(alterations omitted)), cert. denied, 131 S. Ct. 165 (2010).

           We    have   reviewed     the         sentencing     transcript     and    the

district   court’s      statement       of   reasons      and    conclude     that   the

court considered the arguments raised by the parties and adopted

the Government’s position as acceptable.                   In so doing, the court

acknowledged its inclination to sentence Quiller to the high end

of the Guidelines and yet sentenced Quiller to the middle of the

sentencing range, consistent with the Government’s request.

           Accordingly, we conclude that Quiller’s sentence was

both   procedurally        and    substantively            reasonable.          United

States v. Wright, 594 F.3d 259, 267-68 (4th Cir.), cert. denied,

131 S. Ct. 507 (2010); see Rita, 551 U.S. at 347 (upholding

rebuttable presumption of reasonableness for within-Guidelines

sentence).

           In accordance with Anders, we have reviewed the record

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

We therefore affirm Quiller’s convictions and sentence.                              This

court requires counsel inform Quiller, in writing, of the right

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to petition the Supreme Court of the United States for further

review.     If   Quiller      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 Quiller.          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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