                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4384


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

MARC EDWIN APPLEWHITE,

                  Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:07-cr-00336-NCT-1)


Submitted:    November 24, 2008            Decided:   December 29, 2008


Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Bryan Gates, Winston-Salem, North Carolina, for Appellant.
Angela Hewlett    Miller,   Assistant  United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Marc Edwin Applewhite appeals the twenty-seven month

sentence imposed following his guilty plea to one count of wire

fraud, in violation of 18 U.S.C. § 1343 (2006) (“Count 7”), one

count of possession of a forged security, in violation of 18

U.S.C. § 513(a) (2006) (“Count 9”), and the twenty-four month

consecutive sentence imposed following his guilty plea to one

count of aggravated identity theft, in violation of 18 U.S.C.

§ 1028A(a)(1) (2006) (“Count 8”).              Applewhite’s attorney filed a

brief   in   accordance     with    Anders     v.   California,     386   U.S.      738

(1967), certifying there are no meritorious grounds for appeal,

but questioning the calculation of Applewhite’s criminal history

and the reasonableness of his sentence.               Although advised of his

right   to   do     so,   Applewhite     has   declined      to   file    a   pro     se

supplemental brief.        Finding no reversible error, we affirm.

             Applewhite       first      contends      the        district      court

erroneously ascribed two criminal history points for convictions

he did not sustain.         Because Applewhite did not raise this issue

before the district court, our review is for plain error.                           Fed.

R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-32

(1993).      Applewhite       provides   no    evidence    suggesting         the   two

challenged convictions were improperly counted, and there is no

basis   in    the    record    on   which      to   find   the     district     court

committed any error — let alone plain error — in calculating

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Applewhite’s       criminal       history.         Accordingly,      we    reject         this

basis for appeal.

            We      further        conclude         Applewhite’s         sentence          was

reasonable.              The     Supreme      Court       has      instructed          that,

“[r]egardless       of    whether       the   sentence     imposed       is       inside    or

outside the Guidelines range, the appellate court must review

the sentence under an abuse-of-discretion standard.”                                Gall v.

United States, 128 S. Ct. 586, 597 (2007).                      Appellate courts are

charged with reviewing sentences for reasonableness.                                 Id. at

594, 597.        Reasonableness review requires consideration of both

the    procedural       and    substantive        reasonableness     of       a   sentence.

Id. at 597.

            In     determining       whether        a   sentence    is    procedurally

reasonable, we first assess whether the district court properly

calculated the defendant’s advisory Guidelines range.                                Id. at

596-97.    We must then consider whether the district court failed

to    consider    the     18    U.S.C.   §    3553(a)    (2006)     factors         and    any

arguments presented by the parties, selected a sentence based on

“clearly erroneous facts,” or failed to sufficiently explain the

selected sentence.              Id. at 597; United States v. Pauley, 511

F.3d    468,     473     (4th    Cir.    2007).         Finally,     we       review       the

substantive reasonableness of the sentence, “taking into account

the ‘totality of the circumstances.’”                    Pauley, 511 F.3d at 473

(quoting Gall, 128 S. Ct. at 597).                      We afford sentences that

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fall       within       the    properly    calculated              Guidelines        range    a

presumption of reasonableness, see id., a presumption permitted

by the Supreme Court.             Rita v. United States, 127 S. Ct. 2456,

2459, 2462 (2007).

              The     district     court   properly           calculated       Applewhite’s

sentencing range under the Guidelines * and invited counsel to

make any relevant argument pursuant to the § 3553(a) sentencing

factors.            After      hearing     counsel’s           arguments,        permitting

Applewhite        the    opportunity      to       allocute,       and   considering         the

§ 3553(a) factors, the court sentenced Applewhite to a total of

fifty-one      months’        imprisonment,        which      is   within      the   properly

calculated        Guidelines      range.           As   our    review     of    the    record

reveals      no     procedural     or    substantive          defect     in    Applewhite’s

sentence, we conclude Applewhite cannot overcome the presumption

of reasonableness that attaches to his sentence.                              See Rita, 127

S. Ct. at 2459, 2462.




       *
        The district court calculated that Applewhite’s total
adjusted offense level for Counts 7 and 9 was fourteen, and that
he had four criminal history points. U.S. Sentencing Guidelines
Manual (“USSG”) § 2B1.1(a)(1)(B), (b)(1)(F) (2007).   Thus, with
a   category   III   criminal  history,  Applewhite’s   advisory
Guidelines range on Counts 7 and 9 was twenty-one to twenty-
seven months’ imprisonment.     USSG ch. 5, pt. A, sentencing
table.    Applewhite also faced a mandatory twenty-four month
consecutive sentence on Count 8. 18 U.S.C. § 1028A(a)(1); USSG
§ 2B1.6(a).



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            Although not raised by counsel, we further note there

was no infirmity in Applewhite’s conviction.                      The district court

fully complied with the requirements of Fed. R. Crim. P. 11 in

conducting       Applewhite’s      plea    hearing.             The     district       court

advised Applewhite regarding his rights under federal law, the

nature and elements of the charges to which he was pleading

guilty,    and      the     applicable         statutory        mandatory        minimum,

statutory maximum, and period of supervised release.                           The court

also questioned Applewhite to ensure he was competent to plead

guilty.     Applewhite informed the court that, prior to signing

the plea agreement, he had discussed it with his attorney, with

whom he was satisfied.            The district court further accepted the

written factual basis of Applewhite’s guilty plea.                           There simply

was no Rule 11 error.

            In     accordance      with    Anders,        we     have       reviewed    the

entirety     of    the    record     and       found   no       meritorious        issues.

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

further deny counsel’s motion to withdraw from representation.

We require that counsel inform Applewhite, in writing, of the

right to petition the Supreme Court of the United States for

further    review.        If    Applewhite      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

                                           5
a copy thereof was served on Applewhite.   We dispense with oral

argument because the facts and legal contentions are adequately

set forth in the materials before the court and argument would

not aid the decisional process.

                                                        AFFIRMED




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