                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 05-4958



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


XAVIER BAHENA,

                                              Defendant - Appellant.



Appeal from the United States District        Court for the Middle
District of North Carolina, at Durham.         James A. Beaty, Jr.,
District Judge. (CR-05-54)


Submitted:   March 22, 2006                 Decided:   April 11, 2006


Before WILLIAMS and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Mark E. Edwards, EDWARDS AND TRENKLE, PLLC, Durham, North Carolina,
for Appellant. Randall Stuart Galyon, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

          Xavier Bahena pled guilty to one count of conspiracy to

distribute five kilograms or more of a mixture and substance

containing a detectable amount of cocaine hydrochloride and one

count of possession with intent to distribute 6.827 kilograms (net

weight) of a mixture and substance containing a detectable amount

of cocaine hydrochloride, in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(A); 846 (2000). Bahena was sentenced to a 135-month term of

imprisonment.    We affirm the convictions and sentence.

          Because     the   district     court    determined   Bahena       was

responsible     for   20.887      kilograms   (net   weight)   of    cocaine

hydrochloride,    Bahena    was    assigned   a   base   offense    level   of

thirty-four.    See U.S. Sentencing Guidelines Manual § 2D1.1(c)(3)

(2004). The district court then enhanced Bahena’s offense level by

two for possession of a firearm.         See USSG § 2D1.1(b)(1).        After

the application of a three-level adjustment for acceptance of

responsibility, Bahena’s adjusted offense level was thirty-three.

Because Bahena was assessed no criminal history points, he was

placed in criminal history category I. The resulting advisory

guideline range was 135 to 168 months.

          As Bahena did not object, the district court adopted the

findings in the Presentence Investigation Report. Bahena’s counsel

requested the court to

     consider either a sentence at the low end of the range,
     which [was] recommended by the probation office, or

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      possibly even below that range based on [Bahena’s] lack
      of criminal history and his age and in fact he has a
      young child that he needs to get back to and support.

The district court noted that it had considered the arguments of

counsel, the presentence report, as well as the relevant 18 U.S.C.

§ 3553(a) (2000) factors, and sentenced Bahena to imprisonment for

135 months.      In doing so, the court stated that “in this instance

the   advisory    guidelines   constitute   an     appropriate   sentencing

alternative based upon the facts of this case.”

             On appeal, counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), asserting that there were no

meritorious grounds for appeal, but raising the issue of whether

the district court erred when it decided not to sentence Bahena

below the guidelines. Although Bahena was informed of his right to

file a pro se supplemental brief, he did not do so.

             “A district court’s decision not to depart from the

Sentencing Guidelines is not reviewable unless the court mistakenly

believed it lacked authority to depart.”           United States v. Carr,

271 F.3d 172, 176 (4th Cir. 2001).       Before making its decision, the

district court noted that it had considered the arguments of

counsel, including counsel’s request that Bahena be sentenced at

either the low end or below the guideline range.           The court stated

several times that it was treating the guidelines as advisory, but

ultimately    determined   that   the   advisory     guideline   range   was

appropriate.       Accordingly,   we    conclude    the   district   court’s


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decision to not sentence Bahena below the guideline range is not

subject to appellate review.                In addition, even if we were to

review    the     sentence       imposed   by    the   district      court,   we   would

conclude without difficulty that the sentence, which was at the

bottom of the properly calculated guideline range, was reasonable.

See United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005).

            In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.    Accordingly we affirm Bahena’s convictions and sentence.

This court requires that counsel inform his client, in writing, of

his right to petition the Supreme Court of the United States for

further review.          If the client requests that a petition be filed,

but counsel believes that such a petition would be frivolous, then

counsel     may     move     this    court       for   leave    to     withdraw     from

representation.          Counsel’s motion must state that a copy thereof

was served on the client.            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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