                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-4827


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ANTOINE URICK LILLY,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:10-cr-00320-BO-2)


Submitted:   April 18, 2012                   Decided:   June 6, 2012


Before KING, DUNCAN, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


R. Clarke Speaks, SPEAKS LAW FIRM, PC, Wilmington, North
Carolina, for Appellant.      Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                 Antoine    Urick    Lilly       pleaded         guilty,         pursuant        to   a

written     plea     agreement,          to    one    count      of    participating             in   a

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).             The district court departed downward from the

advisory         Guidelines       sentencing         range    based     on       a     substantial

assistance        motion     by    the    Government         and      imposed        a    custodial

sentence     of     150     months   followed         by     five     years       of     supervised

release.         We affirm.

                 On appeal, Lilly’s counsel filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), in which he stated

that he could find no meritorious issues for appeal.                                        Counsel

sought our review of the district court’s finding that Lilly

should not be sentenced pursuant to the Fair Sentencing Act of

2010 (“FSA”).             Finding that issue non-frivolous, we directed

supplemental briefing on that issue as well as on the issue of

whether      any     error     in    the       non-application              of    the      FSA     was

harmless.

                 Although     Lilly’s          offense        conduct            pre-dated         the

enactment of the FSA, both parties sought the application of the

FSA   at    Lilly’s        sentencing         because      the    sentencing             took    place

after      the    effective       date    of    the     Act.          The    district           court,

however, found that the FSA did not apply.                                  Assuming without

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deciding that the district court erred in this respect, ∗ the

result of the non-application of the FSA was that the district

court    calculated   a    ten-year    statutory    minimum   rather   than    a

five-year statutory minimum and the district court applied a

Guidelines range of 262 to 327 months rather than a Guidelines

range of 188 to 235 months.

            Both parties requested that the district court base

its substantial assistance departure off of the FSA Guidelines

range of 188 to 235 months.           The Government suggested a sentence

of 150 months, which represented an approximately twenty percent

departure from the low end of that range.               Lilly did not request

a specific custodial sentence.              Although it declined to apply

the FSA — and therefore found Lilly’s Guidelines range to be 262

to 327 months — the district court ultimately sentenced Lilly to

150 months’ imprisonment.

            We   review    a   sentence     under   a   deferential   abuse   of

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

(2007).     We     first   inspect    for    procedural    reasonableness     by

ensuring    that    the    district    court    committed     no   significant

procedural errors, such as improperly calculating the Guidelines


     ∗
       We have not yet passed on the FSA’s applicability to
convictions involving pre-enactment conduct but post-enactment
sentencing. See United States v. Bullard, 645 F.3d 237, 248 n.5
(4th Cir.), cert. denied, 132 S. Ct. 356 (2011).



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range.     United States v. Boulware, 604 F.3d 832, 837-38 (4th

Cir.     2010).      Assuming     that     the       district    court       improperly

calculated      Lilly’s    Guidelines      range,      it    committed       procedural

error.       Such     procedural    error        is    subject       to     review      for

harmlessness.        See United States v. Savillon-Matute, 636 F.3d

119, 123-24 (4th Cir.), cert. denied, 132 S. Ct. 454 (2011).                              A

finding    of     harmlessness     requires:           (1)    knowledge       that      the

district court would have reached the same result even if it had

decided     the     Guidelines     issue       the    other     way,        and   (2)     a

determination that the sentence would be reasonable even if the

Guidelines issue had been decided in the Defendant’s favor.                             Id.

at 123 (citing United States v. Keene, 470 F.3d 1347, 1349 (11th

Cir. 2006)).        To meet the first inquiry, the record need not

contain a specific statement by the district court that it would

have   imposed      the   same   sentence      regardless       of    the    Guidelines

calculation.      Id. at 124.

            We find that the harmlessness inquiry is met here.

The statutory minimum appears to have played no role in the

imposition of the district court’s sentence.                         Furthermore, the

only reasonable inference from the record is that the district

court concluded that a sentence of 150 months’ imprisonment was

proper regardless of whether the FSA applied to Lilly.                                  The

second harmless inquiry is easily met:                   had the district court

adopted Lilly’s proffered Guidelines range of 188 to 235 months,

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the   150-month        sentence     would       still    constitute      a   meaningful

departure from the Guidelines range and thus would be no less

reasonable.       Thus, any error on the part of the district court

in failing to apply the FSA to Lilly’s sentencing was harmless

because    it    did     not    affect    the     sentence   that       Lilly   actually

received.

               In accordance with Anders, we have reviewed the entire

record    and     have     found     no     meritorious      issues       for   appeal.

Accordingly,      we     affirm    the     district      court’s    judgment.         This

court requires that counsel inform Lilly, in writing, of the

right to petition the Supreme Court of the United States for

further review.          If Lilly 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 Lilly.            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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