                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-7703


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

JAMES EDWARD BYRD, III,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Martin K. Reidinger,
District Judge. (3:01-cr-00178-MR-1)


Submitted:    October 16, 2009              Decided:   January 15, 2010


Before DUNCAN and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Sandra J.     Barrett, Asheville, North Carolina, for Appellant.
Edward R.    Ryan, Acting United States Attorney, Charlotte, North
Carolina;     Amy E. Ray, Assistant United States Attorney,
Asheville,   North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              A jury convicted James Edward Byrd, III of conspiracy

to distribute and possess with intent to distribute fifty grams

or    more   of    crack   cocaine,    in       violation    of   21   U.S.C.   § 846

(2006), and the district court sentenced him to 240 months of

imprisonment. 1       In a prior appeal, we vacated Byrd’s sentence and

remanded for resentencing consistent with Gall v. United States,

552 U.S. 38, 128 S. Ct. 586 (2007).                  See United States v. Byrd,

278    F.    App’x   277   (4th     Cir.    2008)     (No.   06-5162).        At   the

resentencing       hearing,   the    district        court   imposed    a   240-month

sentence. 2       On appeal, 3 Byrd challenges the reasonableness of his

sentence.      We affirm.

              This court reviews a sentence for reasonableness under

an abuse of discretion standard.                Gall, 128 S. Ct. at 597.           This

review requires appellate consideration of both the procedural

and    substantive      reasonableness          of   a   sentence.      Id.     After

determining whether the district court properly calculated the
       1
       The initial sentence imposed by the district court was 360
months.   See United States v. Byrd, 151 F. App’x 218 (4th Cir.
2005) (No. 04-4953) (vacating 360-month sentence and remanding
for resentencing).
       2
       The guidelines ranges was 360 months to life imprisonment
but became 240 months, the statutory maximum sentence.      U.S.
Sentencing Guidelines Manual § 5G1.1(a) (2007).
       3
       Byrd also filed a pro se supplemental brief challenging
his sentence.    We have carefully reviewed the claims raised
therein and find them to be without merit.



                                            2
defendant’s      advisory          guidelines       range,     we    must    then     consider

whether the district court considered the factors in 18 U.S.C.

§ 3553(a)       (2006),      analyzed         any      arguments      presented        by    the

parties, and sufficiently explained the selected sentence.                                   Id.

at 596-97; see United States v. Carter, 564 F.3d 325, 330 (4th

Cir. 2009).          Finally, we review the substantive reasonableness

of the sentence.             United States v. Pauley, 511 F.3d 468, 473

(4th Cir. 2007).

            Byrd’s counsel first asserts that the district court

procedurally erred in sentencing Byrd to 240 months because the

court viewed the guidelines range of 240 months as mandatory and

therefore sentenced Byrd under de facto mandatory guidelines.

Our review of the record convinces us that the district court

understood the advisory nature of the sentencing guidelines.

            Next, counsel asserts that the district court failed

to   address         adequately       the       § 3553(a)      factors,        particularly

§ 3553(a)(6),         by    failing      to     take    into    account       the     need    to

prevent    unwarranted         sentence         disparities         among   co-defendants.

However,    at       the    August       2008    sentencing         hearing,       the      court

engaged    in    a    colloquy       with     defense      counsel       about      this     very

factor.         The        court     correctly         found      that      Byrd      and    his

co-defendants were not similarly situated.

            Finally, Byrd argues that his sentence is procedurally

unreasonable         because       the    district        court      failed      to    explain

                                                3
adequately      why   it    sentenced      Byrd        to     double       the    sentences

received by his co-defendants.                 We review this claim for plain

error because, after being given an opportunity to object to the

sentence imposed by the district court, Byrd failed to challenge

the adequacy of the court’s explanation.                            To establish plain

error, Byrd “must show: (1) an error was made; (2) the error is

plain; and (3) the error affects substantial rights.”                                   United

States   v.    Massenburg,       564   F.3d     337,        342-43    (4th       Cir.    2009)

(reviewing unpreserved Rule 11 error).                   “The decision to correct

the   error    lies    within    our   discretion,            and    we     exercise      that

discretion only if the error seriously affects the fairness,

integrity or public reputation of judicial proceedings.”                                Id. at

343 (internal quotation marks and citations omitted).

              We have carefully reviewed the sentencing transcript

and   find    that    the   district       court       did     not        err--plainly      or

otherwise--in explaining its chosen sentence.                        “When rendering a

sentence,      the    district     court       ‘must        make     an    individualized

assessment based on the facts presented.’”                         Carter, 564 F.3d at

328 (quoting Gall, 128 S. Ct. at 597).                      Thus, “‘[t]he sentencing

judge should set forth enough to satisfy the appellate court

that he has considered the parties’ arguments and has a reasoned

basis for exercising his own legal decisionmaking authority.’”

Id. (quoting Rita v. United States, 551 U.S. 338, 356 (2007));

see United States v. Moulden, 478 F.3d 652, 658 (4th Cir. 2007).

                                           4
            The district court did in fact discuss the relevant

§ 3553(a)    factors,    rejecting     Byrd’s    assertion     that    he   should

receive a sentence similar to those of his co-defendants.                       In

addition, the court noted that Byrd was well spoken and had the

family support to be successful once released from prison.                     The

court    also   acknowledged    Byrd’s     post-sentencing      rehabilitative

efforts but found that those efforts were not relevant to its

sentencing decision but, instead, would be taken into account by

the Bureau of Prisons in calculating Byrd’s good-time credits.

Although the district court did not mention specifically all of

the     § 3553(a)   factors,     the     court     addressed     the     parties’

arguments and provided the individualized assessment required by

Carter.

            Accordingly, we affirm the judgment of 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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