                               UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                               No. 06-5020



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

             versus


AVERY WHEELER,

                                               Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Walter D. Kelley, Jr., District
Judge. (2:05-cr-00113-WDK)


Submitted:    March 26, 2007                    Decided:   May 9, 2007


Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit
Judge.


Affirmed by unpublished per curiam opinion.


Duncan R. St. Clair, III, ST. CLAIR & ROSENBLUM, Norfolk, Virginia,
for Appellant. Chuck Rosenberg, United States Attorney, Laura M.
Everhart, Assistant United States Attorney, Norfolk, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Avery Wheeler pled guilty to one count of conspiracy to

distribute and possess with intent to distribute five or more

kilograms of cocaine and ten counts of distribution and possession

with   intent   to   distribute   cocaine   in   violation   of   21   U.S.C.

§§ 841(a)(1), 846 (2000).     The district court sentenced Wheeler at

the low end of his advisory guideline range to 235 months in prison

and five years of supervised release.       On appeal, Wheeler contends

the district court erred in imposing a sentence under the belief

that the sentencing guidelines were mandatory.         We affirm.

           We will affirm the sentence imposed by the district court

as long as it is within the statutorily prescribed range and is

reasonable. United States v. Hughes, 401 F.3d 540 (4th Cir. 2005).

Although the guidelines are no longer mandatory, they must still be

consulted and taken into account when sentencing. United States v.

Booker, 543 U.S. 220, 264 (2005).       In sentencing a defendant, the

district court must:     (1) properly calculate the guideline range;

(2) determine whether a sentence within that range serves the

factors under 18 U.S.C. § 3553(a) (2000); (3) implement mandatory

statutory limitations; and (4) explain its reasons for selecting

the sentence, especially a sentence outside the range.                 United

States v. Green, 436 F.3d 449, 455-56 (4th Cir.), cert. denied, 126

S. Ct. 2309 (2006).     “A district court’s reasons for not applying

the properly calculated Guideline range must be based on the


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factors listed in § 3553(a).”    Id. at 456.   A sentence within a

properly calculated guideline range is presumptively reasonable.

Id. at 457.   A sentence will be found unreasonable and vacated if

it is “imposed outside the Guideline range and the district court

provides an inadequate statement of reasons or relies on improper

factors in departing from the Guidelines’ recommendation.”       Id.

          We conclude the record does not support Wheeler’s claim

that the district court believed the guidelines were mandatory, and

the court did not err in sentencing him at the low end of his

guideline range.   The court correctly informed Wheeler that “while

the sentencing guidelines are advisory” the court would “give great

consideration to the sentence that the guidelines recommend.”

After properly calculating the guideline range, the court heard

from the parties as to whether a guideline sentence of 235 to 293

months served the factors set forth under 18 U.S.C. § 3553(a).    The

Government argued a sentence within the advisory guideline range

was appropriate.   Wheeler requested leniency and argued there was

“some reason for the Court to deviate from the guidelines.”

          Considering Wheeler’s history and characteristics, the

court determined that he was not significantly more deserving of a

lower sentence than the typical defendant whose crime and history

had produced his guideline range. See United States v. Perez-Pena,

453 F.3d 236, 245 (4th Cir.), cert. denied, 127 S. Ct. 542 (2006).

Although Wheeler had shown initiative by graduating from college


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and had the support of family and friends, he was also responsible

for distributing a significant quantity of cocaine beginning while

he was on supervised release on a prior conviction for conspiracy

to commit witness retaliation. While the district judge stated his

“personal view” was that 235 months was too severe, he recognized

the need for uniformity in sentencing and concluded the § 3553(a)

factors did not support a variance sentence in Wheeler’s case.

           Accordingly, we affirm Wheeler’s conviction and sentence.

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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