                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4704


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ROBERT J. FLEEK, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Senior
District Judge. (1:12-cr-00122-1)


Submitted:   May 9, 2014                      Decided:   May 16, 2014


Before WILKINSON, MOTZ, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Brian J. Kornbrath, Acting Federal Public Defender, Jonathan D.
Byrne, Appellate Counsel, Lex A. Coleman, Assistant Federal
Public Defender, Charleston, West Virginia, for Appellant.   R.
Booth Goodwin II, United States Attorney, John L. File,
Assistant United States Attorney, Beckley, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                 Robert    Fleek     appeals            the     thirty-month          sentence      of

imprisonment imposed by the district court after he pled guilty

to     knowingly          and      intentionally                distributing           forty-eight

hydromorphone           pills,     in     violation            of    21     U.S.C.     § 841(a)(1)

(2012).           On      appeal,       Fleek       argues           that    his      sentence      is

substantively unreasonable because the drug quantity table at

U.S.       Sentencing      Guidelines         Manual          § 2D1.1(c)      (2012),        and   the

method of calculating the drug weight for hydromorphone by the

weight      of    the     whole    pill       and       not    the    active    ingredient         are

arbitrary. ∗          We affirm.

                 We    review      sentences            for     reasonableness           “under      a

deferential           abuse-of-discretion                standard.”            Gall     v.    United

States, 552 U.S. 38, 41 (2007).                          This review entails appellate

consideration             of      both        the        procedural          and       substantive

reasonableness of the sentence.                           Id. at 51.           Where, as here,

there       is   no     allegation       of     significant            procedural       error,      we

proceed to review the sentence for substantive reasonableness,

“tak[ing] into account the totality of the circumstances.”                                         Id.


       ∗
       We do not address Fleek’s argument, raised for the first
time in his reply brief, that recently proposed Guidelines
amendments entitle him to a reduction in his base offense level.
See United States v. Brooks, 524 F.3d 549, 556 & n.11 (4th Cir.
2008) (deeming claim raised for first time in reply brief
abandoned).



                                                    2
If   the    sentence        is    within    or       below    the    properly       calculated

Guidelines       range,      we    apply    a    presumption         on    appeal       that    the

sentence is substantively reasonable.                          United States v. Yooho

Weon, 722 F.3d 583, 590 (4th Cir. 2013).                            Such a presumption is

rebutted     only      if    the    defendant         shows    “that       the    sentence      is

unreasonable       when      measured      against       the    [18       U.S.C.]    § 3553(a)

[(2012)] factors.”                United States v. Montes-Pineda, 445 F.3d

375, 379 (4th Cir. 2006) (internal quotation marks omitted).

              Fleek argues that the Guidelines themselves are flawed

with respect to opioids such as hydromorphone because they treat

pharmacologically            indistinct              substances        differently             when

translating       drug      weight    and       equivalency         into    a    base    offense

level.      In short, Fleek contends that the district court erred

by   relying      on     irrational,        non-empirically            based      Guidelines.

Fleek      invokes     the       Supreme    Court’s      decision          in    Kimbrough      v.

United States, 552 U.S. 85 (2007), to urge that the district

court was required to vary below the Guidelines range in order

to reflect the § 3553(a) sentencing factors.                           However, Kimbrough

did not require district courts to consider “the presence or

absence     of   empirical         data”    underlying         the    Guidelines,         United

States v. Rivera-Santana, 668 F.3d 95, 101-02 (4th Cir. 2012),

nor did it permit appellate courts to discard the presumption of

reasonableness for sentences “based on non-empirically grounded

Guidelines.”         United States v. Mondragon-Santiago, 564 F.3d 357,

                                                 3
366    (5th   Cir.      2009).       Moreover,        we     have   rejected       Fleek’s

particular arguments.            See United States v. Meitinger, 901 F.2d

27, 29 (4th Cir. 1990) (approving use of entire drug weight);

United States v. Bayerle, 898 F.2d 28, 31-32 (4th Cir. 1990)

(upholding       drug      equivalency         tables        against     irrationality

challenge).

              In this case, the district court understood that it

had the power to vary from the Guidelines range and declined to

exercise that power after considering the medical evidence Fleek

presented to demonstrate the arbitrariness of the Guidelines.

Therefore,     the      district     court’s    sentence       is     entitled       to   the

presumption       of     reasonableness        that        attaches     to     a   within-

Guidelines sentence.           The district court stated that it applied

the § 3553(a) factors and found that a sentence at the low end

of the advisory Guidelines range was appropriate.                        Because Fleek

challenges       only    the   district    court’s          decision    to     apply      the

Guidelines, and does not argue any other basis to support the

requested      variance,       we    conclude     that        Fleek’s        sentence     is

substantively reasonable.

              Accordingly, we affirm the district court’s judgment.

We    dispense    with    oral      argument    because       the     facts    and    legal

contentions      are    adequately      presented       in    the     materials      before

this court and argument would not aid the decisional process.

                                                                                   AFFIRMED

                                          4
