                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-5048


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

RICHARD ALLEN WILLIAMS,

                Defendant – Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling.     Frederick P. Stamp,
Jr., Senior District Judge. (5:09-cr-00006-FPS-JES-1)


Submitted:   September 30, 2010           Decided:   October 18, 2010


Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.


Dismissed in part; affirmed in part by unpublished per curiam
opinion.


Brendan S. Leary, Assistant Federal Public Defender, Wheeling,
West Virginia, for Appellant.    Betsy C. Jividen, Acting United
States Attorney, Randolph J. Bernard, John C. Parr, Assistant
United States Attorneys, Wheeling, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Richard       Allen   Williams   appeals    his    110-month   prison

sentence     after     pleading    guilty     to   possession    with    intent   to

distribute 312 80-mg oxycodone tablets and 214 30-mg oxycodone

tablets in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (2006).

On appeal, Williams contends the district court erred in denying

him    a   reduction    for    acceptance     of   responsibility       under   U.S.

Sentencing Guidelines Manual (USSG) § 3E1.1 (2008), in denying

him a downward departure under USSG § 4A1.3(b), and in denying

him a downward variance based on his criminal history arguments.

We dismiss the appeal in part and affirm the judgment.

             We review a sentence imposed by the district court

under a deferential abuse-of-discretion standard.                    See Gall v.

United States, 552 U.S. 38, 51 (2007).                  The first step in this

review requires us to ensure that the district court committed

no significant procedural error, such as improperly calculating

the guideline range, failing to consider the 18 U.S.C. § 3553(a)

(2006) factors, or failing to adequately explain the sentence.

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

then   consider      the    substantive     reasonableness      of   the   sentence

imposed, taking into account the totality of the circumstances

and giving “due deference to the district court’s decision.”

Gall, 552 U.S. at 51.              On appeal, we presume that a sentence



                                          2
within    a   properly         calculated        guideline          range        is    reasonable.

United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).

              Williams first contends the district court erred in

denying him a reduction for acceptance of responsibility.                                         We

review    the      district      court’s       decision        for        clear       error.     See

United States v. Dugger, 485 F.3d 236, 239 (4th Cir. 2007).                                       We

“must give ‘great deference’ to the district court’s decision

because    ‘[t]he        sentencing          judge   is    in       a   unique        position    to

evaluate      a    defendant’s         acceptance         of    responsibility.’”                Id.

(quoting USSG § 3E1.1, comment. (n.5)).                         “To earn the reduction,

a defendant must prove to the court by a preponderance of the

evidence      ‘that       he    has    clearly       recognized            and     affirmatively

accepted      personal         responsibility        for       his      criminal        conduct.’”

Id. (quoting United States v. Nale, 101 F.3d 1000, 1005 (4th

Cir. 1996)).            “A guilty plea may be evidence of acceptance, but

‘it does not, standing alone, entitle a defendant to a reduction

as a matter of right.’”                 Id. (quoting United States v. Harris,

882 F.2d 902, 905 (4th Cir. 1989)).

              After       pleading      guilty,      Williams           tested        positive   for

oxycodone.          Because      he    did     not   have       a    prescription         and    was

unlawfully        in    possession       of    the   drug,          the    probation       officer

concluded         his    conduct       was     inconsistent             with      acceptance      of

responsibility           under        USSG     § 3E1.1,         comment.          (n.1).         At

sentencing, Williams proffered that he had a lengthy addiction

                                                3
to pain medication, but had quit using the drugs.                              However,

after    suffering      an    attack    of       kidney    stones,    he     took    some

oxycodone to relieve the pain.                   He acknowledged he could have

gone to a doctor for a prescription but did not do so.                                The

district court accepted Williams’s proffer that he used the drug

for kidney stones, but noted the fact that he had not gone to a

doctor    where    it   was   presumed       he    would   have     been   given     some

medicine or other treatment.             The district court found Williams

had not presented sufficient evidence to show that a reduction

for acceptance of responsibility was warranted, and we conclude

the court did not clearly err in this finding.

            Williams     next    contends         the   district     court    erred       in

denying his request for a reduction in criminal history category

under    USSG   § 4A1.3(b)(1),         and   his    alternative      request        for   a

variance based on the same arguments.                      While he conceded his

criminal history category of V was properly determined under the

guidelines, he argued it over-represented the seriousness of his

criminal history because his prior convictions were for minor

offenses; his sentences for two of the convictions were ordered

to be run concurrently; and while many of his convictions were

outside the applicable period and not assessed points, his first

convictions       receiving    points    were      just    inside    the     applicable

period.     After hearing his arguments, the district court found

there     was   insufficient      reliable         information       indicating       his

                                             4
criminal   history    category    substantially   over-represented   the

seriousness of his criminal history or the likelihood that he

would commit other crimes to warrant a downward departure.           The

court likewise concluded his arguments were not sufficient to

warrant a variance, and that a guideline sentence was sufficient

but not greater than necessary to address the sentencing factors

under § 3553(a).     The district court sentenced Williams at the

low end of his 110 to 137-month guideline range.            The court’s

decision not to grant a downward departure is not reviewable on

appeal, and we dismiss this portion of Williams’s appeal.            See

Allen, 491 F.3d at 193.          We further conclude he has shown no

abuse of discretion by the district court in denying a variance

and sentencing him at the low end of his guideline range.

           We therefore dismiss the appeal in part, and affirm

the district court’s judgment.           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.

                                                     DISMISSED IN PART;
                                                       AFFIRMED IN PART




                                     5
