                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 08-4305


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

ALAN LUN WAI NG, a/k/a Lun Waing,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.        Richard L.
Voorhees, District Judge. (5:07-cr-00024-RLV-CH-1)


Submitted:   April 15, 2010                     Decided:   May 14, 2010


Before MOTZ and    AGEE,    Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


R. Deke Falls, BARNETT & FALLS, Charlotte, North Carolina, for
Appellant. Amy Elizabeth Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Alan Lun Wai Ng pled guilty, without the benefit of a

plea       agreement,    to     conspiracy        to    possess      with    intent   to

distribute marijuana, in violation of 21 U.S.C. § 846 (2000),

and possession with intent to distribute marijuana, in violation

of 21 U.S.C. § 841 (2006).                 Ng was sentenced at the bottom of

his advisory Sentencing Guidelines range to twenty-four months’

imprisonment.           On    appeal,      Ng’s    counsel     has    filed    a   brief

pursuant to Anders v. California, 386 U.S. 738 (1967), stating,

in his view, there are no meritorious issues for appeal, but

raising      the   issues     of    whether       the   district     court    committed

procedural errors in imposing Ng’s sentence and whether Ng’s

sentence is substantively unreasonable. ∗                  We affirm the judgment

of the district court.

              This court reviews a sentence imposed by a district

court under a deferential abuse of discretion standard.                         Gall v.

United States, 552 U.S. 38, 51 (2007); United States v. Evans,

526 F.3d 155, 161 (4th Cir. 2008).                  In reviewing a sentence, the

appellate      court     must      first    ensure      that   the    district     court

committed no procedural error.                Gall, 552 U.S. at 51.            If there

are no procedural errors, the appellate court then considers the


       ∗
           Ng was informed of his right to file a pro se supplemental
brief.      He has elected not to do so.



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substantive reasonableness of the sentence.                          Id.        A substantive

reasonableness review entails taking into account the totality

of the circumstances.               United States v. Pauley, 511 F.3d 468,

473 (4th Cir. 2007) (quotations and citation omitted).                                       This

court    presumes      that    a    sentence       within       a   properly         calculated

guidelines range is reasonable.                   See United States v. Allen, 491

F.3d 178, 193 (4th Cir. 2007).

               “When rendering a sentence, the district court ‘must

make     an     individualized          assessment             based       on        the    facts

presented.’”          United States v. Carter, 564 F.3d 325, 328 (4th

Cir.    2009)    (quoting      Gall,    552       U.S.    at    50).        Accordingly,          a

sentencing court must apply the relevant 18 U.S.C. § 3553(a)

(2006) factors to the particular facts presented and must “state

in open court” the particular reasons that support its chosen

sentence.       Id.    Stating in open court the particular reasons for

a   chosen     sentence      requires    the       district         court       to    set   forth

enough    to    satisfy      this    court    that       the    district         court      has   a

reasoned basis for its decision and has considered the parties’

arguments.       Id.      “‘Where the defendant or prosecutor presents

nonfrivolous      reasons      for     imposing      a    different         sentence’        than

that    set    forth    in    the   advisory       Guidelines,         a    district        judge

should address the party’s arguments and ‘explain why he has

rejected those arguments.’”              Id. (quoting Rita v. United States,

551 U.S. 338, 356 (2007).                Failure to address a party’s non-

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frivolous sentencing arguments and adequately explain the chosen

sentence constitutes procedural error.                        United States v. Lynn,

592 F.3d 572, 575-76 (4th Cir. 2010).

               We     recently         clarified       the     standard       of    review

applicable to the adequacy of a district court’s explanation of

a defendant’s sentence and the method by which a defendant may

preserve an objection to that explanation.                         Lynn, 592 F.3d at

576-78.       “[I]f a party repeats on appeal a claim of procedural

sentencing error . . . which it has made before the district

court, [this court] review[s] for abuse of discretion” and will

reverse       unless    the    court     can       conclude    “that    the    error      was

harmless.”          Id. at 576.        “An aggrieved party sufficiently alerts

the     district       court      of     its       responsibility       to    render          an

individualized         explanation”       by       drawing    arguments      from   §    3553

“for a sentence different than the one ultimately imposed,” and

thereby, the party sufficiently “preserves its claim.”                              Id. at

578.      However, if a defendant fails to preserve his or her

claim, this court reviews only for plain error.                              Id. at 577.

Here,    Ng    sufficiently       preserved         his   claims   by   arguing         for   a

variance sentence, and they are, therefore, reviewed for abuse

of discretion.         See United States v. Thompson, 595 F.3d 544, 546

(4th Cir. 2010).

               Ng first claims the district court erred in denying

his request for a variance sentence on the ground that he had

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already received the benefit of a minor role adjustment and the

safety     valve         provision.           The       transcript          clearly     indicates,

though, that the district court did not deny a further reduction

because    of       the       safety    valve      provision          and    USSG    § 3B1.1,     but

merely cited to those two provisions to explain that the court

was   “being         generous         with    the       sentence”       by     not     imposing    a

sentence       at    the       high    end    or     above      Ng’s        advisory    guidelines

range.         Accordingly,            Ng    fails      to     demonstrate          error    by   the

district court, and his claim fails.

               Ng     next       argues      that       the     district       court     committed

procedural error in failing to address his argument that, due to

his   status        as    a    deportable       alien,         the    district       court   should

impose     a    variance          sentence.              See     18    U.S.C.       § 3553(a)(6).

According       to       Ng,    his    status       as    a     deportable          alien    created

unwarranted sentencing disparities between himself and a U.S.

citizen found guilty of similar conduct because he would not be

eligible to spend the final ten percent of his sentence in a

halfway house and would remain detained pending deportation.

               In sentencing Ng, the district court indicated that it

would have been inclined to impose a sentence near the high end

of Ng’s advisory guidelines range due to questions surrounding

Ng’s disclosures to the Government.                            However, the district court

selected a sentence near the bottom of Ng’s advisory guidelines

range due to Ng’s family situation and lack of a prior record.

                                                    5
The district court then stated that it “will decline to give any

variance      because   it     is     not           appropriate       under      these

circumstances.”     The district court never explicitly stated why

Ng’s reasons for a variance sentence were rejected.                           Assuming

that the district court’s failure to provide such an explanation

constituted significant procedural error, we find the error was

harmless because the Bureau of Prisons is given sole authority

to determine where an inmate will serve his or her sentence.

See 18 U.S.C. § 3621(b) (2006); Elwood v. Jeter, 386 F.3d 842,

844, 847 (8th Cir. 2004); Goldings v. Winn, 383 F.3d 17, 22 (1st

Cir. 2004); see also 18 U.S.C. § 3624(c)(2) (2006) (authorizing

the Bureau of Prisons to place a defendant in a halfway house).

             Finally, Ng’s sentence was substantively reasonable.

This court presumes a sentence within the guidelines range is

reasonable, and the record does not rebut that presumption in

this case.

             In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal.

We therefore affirm Ng’s convictions and sentence.                      This court

requires that counsel inform Ng, in writing, of the right to

petition   the   Supreme   Court     of       the   United   States    for     further

review.    If Ng 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

                                          6
representation.        Counsel’s motion must state that a copy thereof

was served on Ng.         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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