                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4990


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

GILMORE RICHARDS,

                  Defendant – Appellant.


Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield.  Thomas E. Johnston,
District Judge. (1:08-cr-00040-1)


Submitted:    July 20, 2009                 Decided:   August 14, 2009


Before WILKINSON, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


John H. Tinney, Jr., TINNEY LAW FIRM, PLLC, Charleston, West
Virginia, for Appellant.   Charles T. Miller, United States
Attorney, Charleston, West Virginia, Miller A. Bushong, III,
OFFICE OF THE UNITED STATES ATTORNEY, Beckley, West Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Gilmore       Richards        pled    guilty      pursuant      to     a   plea

agreement    to    one    count     of    distribution        of    cocaine      base,     in

violation of 21 U.S.C. § 841(a)(1) (2006).                     As part of the plea

agreement, Richards waived his right to appellate review of the

reasonableness of a sentence within the Guidelines range.                                 The

district    court        sentenced        Richards      to     a     within-Guidelines

sentence    of    70   months’      imprisonment.            Richards’      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       erred    in    denying

Richards’     motion      for   a    downward       departure        and    whether       the

sentence imposed is reasonable.                  The Government does not seek to

enforce the plea agreement’s appeal waiver. *                      We affirm.

            Richards      contends        that    the   district      court       erred    in

denying his motion for a downward departure, pursuant to U.S.


      *
       Because the Government does not seek enforcement of the
appeal waiver, we need not consider whether the waiver is
dispositive of this appeal.    See United States v. Brock, 211
F.3d 88, 90 n.1 (4th Cir. 2000) (declining to consider an appeal
waiver that arguably barred the appeal on one issue because the
Government had expressly elected not to argue waiver with
respect to that issue); cf. United States v. Blick, 408 F.3d
162, 168-69 (4th Cir. 2005) (enforcing a plea agreement’s appeal
waiver where the Government sought enforcement, the issues
raised fell within the waiver’s scope, and no claim was
presented that the Government breached its obligations under the
plea agreement).



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Sentencing Guidelines Manual § 4A1.3 (2007), on the basis that

his criminal history category over-represented the seriousness

of his criminal history.                 A district court’s refusal to depart

from the applicable Sentencing Guidelines range does not provide

a basis for appeal under 18 U.S.C. § 3742 (2006), “unless the

court failed to understand its authority to do so.”                                       United

States v. Brewer, 520 F.3d 367, 371 (4th Cir. 2008).                                         After

review    of       the    record,      we     conclude   that         the    district        court

clearly recognized its authority to depart but determined that a

downward departure was not warranted.                         Accordingly, this claim

is not cognizable on appeal.

               A    review        of    the     sentencing        transcript           and      the

presentence         report        reveals       no    error      in     sentencing.              In

determining         a    defendant’s        sentence,      the    district         court       must

calculate properly the advisory Guidelines range and consider

this     range      in        conjunction      with    the    factors        set       forth     at

18 U.S.C. § 3553(a) (2006).                   Gall v. United States, 552 U.S. 38,

___,   128     S.       Ct.    586,    596-97    (2007).         We    review      a    district

court’s imposition of a sentence, “whether inside, just outside,

or significantly outside the Guidelines range,” under an abuse-

of-discretion standard.                128 S. Ct. at 591.              Further, sentences

within     the          applicable       Guidelines      range         may     be       presumed

reasonable on appeal.                  United States v. Pauley, 511 F.3d 468,

473 (4th Cir. 2007).

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            The district court followed the necessary procedural

steps in sentencing Richards, properly calculating, treating as

advisory, and considering the Guidelines range, performing an

“individualized assessment” of the relevant § 3553(a) factors,

and stating in open court the reasons for its sentence.                    United

States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009).                   Richards’

sentence, which is at the low end of the applicable Guidelines

range     and    below   the     statutory     maximum      of    twenty   years’

imprisonment, may be presumed on appeal to be reasonable.                     We

conclude that the district court did not abuse its discretion in

sentencing Richards.

            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 Richards, in writing, of the right

to petition the Supreme Court of the United States for further

review.     If Richards 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 Richards.          We dispense with oral argument because

the facts and legal contentions are adequately presented in the




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materials   before   the   court   and   argument   would   not   aid   the

decisional process.

                                                                  AFFIRMED




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