                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4679


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

KENNETH KENNY MARTIN, a/k/a Twice,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:08-cr-00270-WO-1)


Submitted:   November 22, 2010            Decided:   January 3, 2011


Before GREGORY, DUNCAN, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Christopher A. Beechler, LAW OFFICES OF CHRISTOPHER A. BEECHLER,
Winston-Salem, North Carolina, for Appellant. Randall Stuart
Galyon, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Kenneth      Kenny   Martin    appeals       the     240-month         sentence

imposed following his guilty plea to one count of distribution

of   cocaine      base     (“crack”),         in    violation          of     21    U.S.C.

§ 841(a)(1), (b)(1)(A) (2006).            Counsel for Martin filed a brief

in this court in accordance with Anders v. California, 386 U.S.

738 (1967), certifying that there are no non-frivolous issues

for appeal, but noting that Martin objects to the length of his

sentence.      Martin filed a pro se supplemental brief contending

that the district court imposed an unreasonable sentence and

that he received ineffective assistance of counsel.                           Finding no

reversible error, we affirm.

            Because Martin did not request a different sentence

than the    one   ultimately      imposed,         we   review    his       sentence    for

plain error.      See United States v. Lynn, 592 F.3d 572, 578-79

(4th Cir. 2010) (unpreserved sentencing errors reviewed only for

plain   error).          We   begin   by       reviewing         the    sentence        for

significant procedural error, including such errors as “failing

to calculate (or improperly calculating) the Guidelines range,

treating the Guidelines as mandatory, failing to consider the

[18 U.S.C.] § 3553(a) [2006] factors, selecting a sentence based

on clearly erroneous facts, or failing to adequately explain the

chosen sentence including an explanation for any deviation from

the Guidelines.”         Gall v. United States, 552 U.S. 38, 51 (2007).

                                          2
If     there    are       no   procedural          errors,          we   then      consider       the

substantive reasonableness of the sentence, taking into account

the totality of the circumstances.                        United States v. Pauley, 511

F.3d 468, 473 (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 § 3553(a) factors to

the particular facts presented and must “state in open court”

the particular reasons that support its chosen sentence.                                          Id.

The    court’s       explanation       need        not    be    exhaustive;         it     must    be

“sufficient ‘to satisfy the appellate court that [the district

court] has considered the parties’ arguments and has a reasoned

basis for exercising [its] own legal decisionmaking authority.’”

United States v. Boulware, 604 F.3d 832, 837 (4th Cir. 2010)

(quoting Rita v. United States, 551 U.S. 338, 356 (2007)).

               We    hold      that    the    district          court       committed      neither

procedural          nor    substantive         error          during     sentencing.              The

district court used the correct advisory Guidelines range and

explained its reasoning, considering both parties’ arguments and

the § 3553(a) factors.                Moreover, Martin’s sentence is below the

applicable Guidelines range, at the statutory minimum.                                      In the

absence of a substantial assistance motion by the Government,

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the   district    court     lacked    the        authority         to    depart   below   the

statutory minimum.          See United States v. Robinson, 404 F.3d 850,

862 (4th Cir. 2005).

            In his pro se supplemental brief, Martin contends that

(1) the sentence imposed by the district court contradicted its

finding    that   Martin      was    eligible          for    a     180-month      sentence;

(2) the district court erred by failing to consider his “mental

deficiencies,”      as    explained     in       the    Presentence          Investigation

Report (“PSR”); (3) the district court erred by ordering that

the sentence run consecutively, rather than concurrently, to his

undischarged        state        sentence;        and        (4)        counsel     rendered

ineffective assistance.             Martin’s first two claims fail as they

are completely contradicted by the record.                              The district court

never found that Martin was eligible for a 180-month sentence

and the PSR did not contain any evidence of mental deficiencies.

Martin’s third claim also is without merit, as it was within the

court’s    discretion       to     decide    whether          to    run     the   sentences

consecutively       or    concurrently,           pursuant         to     U.S.    Sentencing

Guidelines Manual § 5G1.3(c) (2009).                         Therefore, we hold that

Martin’s    sentence        was     reasonable          and        the     district    court

committed        neither         procedural            nor         substantive         error.

Additionally, we hold that Martin’s ineffective assistance of

counsel    claims    are     not    cognizable          on    direct       appeal     because

ineffective assistance of counsel does not appear conclusively

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on the record.        See United States v. Baldovinos, 434 F.3d 233,

239 (4th Cir. 2006).

            In accordance with Anders, we have examined the entire

record and find no other meritorious issues for appeal.                                    We

therefore    affirm      the    district      court’s        judgment.          This    court

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

petition    the   Supreme       Court   of       the    United      States      for   further

review.     If    Martin       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

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

was served on Martin.

            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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