                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 09-4437


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

BILLY R. MCCULLERS, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News.    Rebecca Beach Smith,
District Judge. (4:07-cr-00049-RBS-JEB-1)


Submitted:   August 30, 2010             Decided:   September 17, 2010


Before WILKINSON and    NIEMEYER,    Circuit   Judges,   and   HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Cullen D. Seltzer, SELTZERGREENE, PLC, Richmond, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, Richard D.
Cooke, Assistant United States Attorney, Howard J. Zlotnick,
Assistant United States Attorney, Newport News, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Billy R. McCullers, Jr., appeals from his conviction

and sentence imposed for multiple violations of drug trafficking

and   firearms       statutes,   and       witness     tampering.           On    appeal,

McCullers challenges the Government’s use of its peremptory jury

strikes       on     African-Americans,          the    reasonableness            of     the

eighty-five year sentence imposed, the sentencing disparity for

crack cocaine, and whether he should have received consecutive

sentences for 18 U.S.C. § 924(c) (2006) violations.                         We conclude

there is no error and affirm the judgment.

              McCullers     contests       the   district    court’s     decision         to

deny his challenge under Batson v. Kentucky, 476 U.S. 79 (1986).

The   Equal    Protection     Clause       forbids     the   use   of   a    peremptory

challenge for a racially discriminatory purpose.                            Batson, 476

U.S. at 86.          This court gives “great deference” to the trial

court’s finding “concerning whether a peremptory challenge was

exercised      for    a   racially    discriminatory         reason.”            Jones   v.

Plaster, 57 F.3d 417, 421 (4th Cir. 1995).                          The finding is

reviewed for clear error.            Id.

              In Hernandez v. New York, 500 U.S. 352 (1991), the

Supreme Court summarized the three-step process used to analyze

a Batson claim:

      First, the defendant must make a prima facie showing
      that   the   prosecutor  has   exercised    peremptory
      challenges on the basis of race.      Second, if the

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       requisite showing has been made, the burden shifts to
       the   prosecutor    to   articulate   a   race-neutral
       explanation for striking the jurors in question.
       Finally, the trial court must determine whether the
       defendant has carried his burden of proving purposeful
       discrimination.

Id. at 358-59 (internal citations omitted).                              The court added

that, in undertaking a Batson analysis:

       the decisive question will be whether counsel’s race-
       neutral explanation for a peremptory challenge should
       be believed.     There will seldom be much evidence
       bearing on that issue, and the best evidence often
       will be the demeanor of the attorney who exercises the
       challenge. . . . [E]valuation of the prosecutor’s
       state of mind based on demeanor and credibility lies
       peculiarly within a trial judge’s province.

Id. at 365.

             At the second step, “[u]nless a discriminatory intent

is inherent in the prosecutor’s explanation, the reason offered

will be deemed race-neutral.”                  Id. at 360.          The proffered reason

for striking a juror “need not be worthy of belief or related to

the issues to be tried or to the prospective juror’s ability to

provide acceptable jury service.”                      Jones, 57 F.3d at 420.              All

that   is   required        is    that    the       reason    be    race-neutral.          See

Purkett     v.   Elem,      514    U.S.    765,       768     (1995).      Both      age   and

occupation       are    legitimate,            race-neutral         reasons     to   strike.

United States v. Grimmond, 137 F.3d 823, 834 (4th Cir. 1998)

(age);    Smulls       v.   Roper,       535    F.3d    853,       867   (8th   Cir.   2008)

(occupation).               Here,        because        the        prosecutor        provided

race-neutral explanations (age, occupation, and residence in a

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high drug activity zip code) for striking the three jurors in

question,      the    Government          satisfied      its    burden      at    the    second

step.

              At     the     third    step,    the      trial       court’s      duty    is    to

determine      whether       the     Government’s        race-neutral           reason   for    a

strike   is     “a    pretext       for    discrimination.”            United      States      v.

Farrior, 535 F.3d 210, 221 (4th Cir. 2008).                           The defendant must

“show both that [the Government’s stated reasons for a strike]

were merely pretextual and that race was the real reason for the

strike.”      United States v. McMillon, 14 F.3d 948, 953 (4th Cir.

1994).       At this step, the “‘defendant may rely on all relevant

circumstances           to      raise         an        inference          of      purposeful

discrimination.’”             Golphin v. Branker, 519 F.3d 168, 179 (4th

Cir.    2008)      (quoting     Miller-El          v.   Dretke,      545    U.S.    231,      240

(2005)).      The defendant need not “point to an identical juror of

another race who was not peremptorily challenged.”                               Golphin, 519

F.3d    at   179.          Rather,    “direct       comparisons       between       similarly

situated venire-persons of different races” are probative.                                    Id.

at 179-80 (internal quotation marks omitted).

              In this case, McCullers — an African-American male —

objected to the striking of three of the eight African-Americans

on the venire panel.                The district court properly credited the

Government’s         reasons    as    legitimate        and     nondiscriminatory,            and

McCullers          failed      in     his      burden          to    prove        intentional

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discrimination.          Therefore the district court did not clearly

err in denying McCullers’ Batson challenge.

               McCullers argues that his sentence was excessive under

18   U.S.C.     § 3553(a)       (2006).           McCullers     received    an    85-year

sentence, with the statutory minimum sentence being 65 years.

McCullers argues that even the 65-year sentence, consisting of

all statutory minimum sentences, which includes ten years for

count one, would in effect be a life sentence because he was 31

years old at sentencing and had a remaining life expectancy of

42 to 45 years.             We review a sentence for reasonableness under

an abuse of discretion standard.                      Gall v. United States, 552

U.S.     38,     51     (2007).           This       review      requires     appellate

consideration          of     both      the         procedural     and      substantive

reasonableness of a sentence.                 Id.     Procedural reasonableness is

determined      by     reviewing      whether       the   district    court      properly

calculated the defendant’s advisory Guidelines range and then

considered       the    18     U.S.C.     § 3553(a)        factors,      analyzed    any

arguments presented by the parties, and sufficiently explained

the selected sentence.               Id. at 49-51.         “Regardless of whether

the district court imposes an above, below, or within-Guidelines

sentence,       it    must    place     on     the     record    an   ‘individualized

assessment’ based on the particular facts of the case before

it.”     United States v. Carter, 564 F.3d 325, 330 (4th Cir.

2009).    Substantive reasonableness of the sentence is determined

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by   “taking    into    account          the    ‘totality      of     the    circumstances,

including      the    extent        of    any       variance    from        the       Guidelines

range.’”     United States v. Pauley, 511 F.3d 468, 473 (4th Cir.

2007) (quoting Gall, 552 U.S. at 51).

            What       McCullers          essentially         seeks     is        a     downward

variance so that, with the additional consecutive sentences, the

total sentence is not so onerous.                       However, under § 924(c), a

defendant is first sentenced for the underlying drug trafficking

offense,    without     consideration            for    the    applicable         consecutive

sentences related to the firearm violations.                            A court may not

effectively convert these sentences into concurrent sentences by

shrinking the sentence that it would otherwise impose for the

predicate      offenses       for    the       § 924(c)      violation.           See     United

States v. Chavez, 549 F.3d 119 (2d Cir. 2008).

            Here,      the     district         court       correctly       calculated        the

sentence and there is no procedural error.                          The court was aware

of its discretion to vary downward and chose not to do so.

McCullers’     main     objection         is    that    a    sixty-five-year            sentence

would in effect be a life sentence, statistically speaking; and

that,   therefore,        the       eighty-five-year            sentence          imposed      is

greater than necessary under the requirements of § 3553(a).                                    In

determining      that     a     360-month           sentence     on     several         of    the

concurrent drug counts, in addition to the mandatory consecutive

statutory      sentences,           was    appropriate,          the        district         court

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considered the § 3553(a) factors, explicitly noting that the

facts     and    circumstances            of    the    conspiracy          offense     “weigh[]

heavily       against        [McCullers]        because       of     the     length    of     the

conspiracy, the amount of drugs that were involved, and all of

the matters,” and adopted the facts in the PSR.                              The court also

noted that McCullers was “hanging around and involving [him]self

in a drug conspiracy with some pretty rough characters.”                                      The

court     further        noted      the        three     separate       firearm       offenses

involving three different years, establishing a continued use of

guns and the seriousness of that conduct.                              The court credited

that    McCullers        was       only    in     criminal         history       category     II.

However,        the    court       found       that    McCullers’          conduct    had     not

previously       promoted         respect      for     the    law    and    that     the     court

considered the need for deterrence of continued criminal conduct

and    the    need      to    protect      the       public    from     future       crimes    by

McCullers.        Finally, in imposing the sentence, the court found

that the sentence on each count was sufficient but not greater

than    necessary        to       comply       with    the    purposes        of     § 3553(a).

Moreover, McCullers’ within-Guidelines sentence is presumptively

reasonable       on     appeal,      and       McCullers       has    not     rebutted       that

presumption.           See United States v. Montes-Pineda, 445 F.3d 375,

379    (4th     Cir.    2006)      (stating      presumption          may   be     rebutted    by

showing       sentence       is    unreasonable         when        measured       against    the



                                                 7
§ 3553(a) factors).          Thus, we conclude that the district court

did not abuse its discretion in imposing the chosen sentence.

            McCullers        argues    that         sentencing    based         on    a

discrepancy between crack and powder cocaine violates the Equal

Protection     Clause.       McCullers       correctly    contends       that    under

Kimbrough v. United States, 552 U.S. 85 (2007), district courts

do not have to adhere to the 100-to-1 sentencing ratio creating

the crack/powder cocaine disparity.                  McCullers also notes the

Sentencing Commission is advocating for eliminating or at least

reducing the 100-to-1 ratio and that the Department of Justice

has   called   for    eliminating     the     sentencing     disparity      between

crack cocaine and powder cocaine.              In addition, McCullers points

to a bill pending in Congress that would remove references from

the United States Code to cocaine base, thus eliminating the

sentencing disparity.

            According to McCullers, any sentence that was based

upon something greater than a one-to-one ratio for crack and

powder    cocaine    would    be   unfair     and    unreasonable.        McCullers

fails to cite any controlling opinion or statute that required

the district court to apply the one-to-one to ratio.

            In Spears v. United States, 129 S. Ct. 840 (2009), the

Supreme    Court     acknowledged      that      Kimbrough       stood     for       the

proposition that sentencing courts have the “authority to vary

from the crack cocaine Guidelines based on policy disagreement

                                         8
with    them,   and       not     simply       based       on    an     individualized

determination      that    they    yield       an       excessive      sentence        in    a

particular case.”         Spears, 129 S. Ct. at 843.                   In Spears, the

Supreme Court approved of the sentencing court’s decision to

apply   a   twenty-to-one        ratio     when     imposing       a   sentence        in    a

typical crack cocaine case.              Id. at 844.             However, it is one

thing to say that a district court may vary from a Guideline on

policy grounds; it is quite a leap, however, to hold that it

must.   See Spears, 129 S. Ct. at 844 (holding “we now clarify

that    district     courts       are      entitled        to    reject       and       vary

categorically      from    the    crack-cocaine           Guidelines        based      on    a

policy disagreement with those Guidelines”).

            Here, the district court clearly understood it had the

authority to vary below the Guidelines based on a consideration

of something less than the current sentencing disparity between

crack and powder cocaine.           It properly calculated the Guidelines

using the current base offense level for the quantity of crack

cocaine for which McCullers was held responsible.

            Finally,      McCullers      asserts         error      relative      to        his

sentence because his three § 924(c) convictions were returned in

the same proceeding and were therefore allegedly intertwined.

He therefore claims that he cannot be subjected to the 25-year

statutory     minimum      sentence      for        a    “second       or    successive”

conviction.     Under § 924(c), a five-year sentence, consecutive

                                           9
to     the   predicate     felony,       is    imposed        for    the        first    such

conviction and a twenty-five year sentence is imposed for each

subsequent      conviction.         McCullers’         claim        is    foreclosed       by

Deal v. United States, 508 U.S. 129, 137 (1993).                                Such is the

case     even   where    the      prior       offenses        giving       rise     to    the

enhancement are all tried during a single proceeding.                               Id. at

137.     In addition, the conduct for each of the three § 924(c)

convictions took place in three separate years and each was tied

to   a   separate   drug    trafficking        count     as    a    predicate       felony.

Therefore, McCullers’ claim fails.

             Accordingly, we affirm the 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.

                                                                                   AFFIRMED




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