                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 09-4881


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

CORDELL LESTER SMITH,

                 Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:06-cr-00067-FDW-DCK-1)


Submitted:     February 25, 2011           Decided:   March 21, 2011


Before NIEMEYER, GREGORY, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Leslie Carter Rawls, 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Unpublished opinions are not binding precedent in this circuit.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:

            Following       a   jury   trial,    Cordell      Lester    Smith   was

convicted of possession with intent to distribute a quantity of

crack cocaine, in violation of 21 U.S.C.A. § 841(a), (b) (West

1999 & Supp. 2010) (Count One), using and carrying one or more

firearms during and in relation to a drug trafficking crime, in

violation    of   18    U.S.C.    § 924(c)(1)        (2006)   (Count    Two),   and

possession of one or more firearms by a convicted felon, in

violation of 18 U.S.C. § 922(g) (2006) (Count Three).                    The court

sentenced    Smith     in   November   2007     to   a   total   of    197   months’

imprisonment:     137 months on Count One, a concurrent 120 months

on Count Three, and a consecutive sixty months on Count Two.                     On

appeal, finding that the district court improperly presumed that

a sentence within the guidelines range would be reasonable, this

court vacated his sentence and remanded the case to the district

court for resentencing.           See United States v. Smith, 566 F.3d

410 (4th Cir. 2009), cert. denied, 130 S. Ct. 1100 (2010).

            At resentencing, as at the original sentencing, the

district court adopted the guidelines calculations established

in the presentence report (“PSR”).               Counts One and Three were

grouped pursuant to U.S. Sentencing Guidelines Manual § 3D1.2(c)

(2007).     The guideline for Count One, possession with intent to

distribute cocaine base, USSG § 2D1.1, produced a higher offense

level,    twenty-eight;         consequently,        under    USSG     § 3D1.3(a),

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Smith’s base offense level for Counts One and Three was twenty-

eight.      With an offense level of twenty-eight and a criminal

history category of IV, Smith’s guidelines range on Counts One

and Three was 110 to 137 months’ imprisonment.                            USSG ch. 5, pt.

A (sentencing table).              However, because the statutory maximum

sentence for Count Three under 18 U.S.C. § 924(a)(2) (2006) was

ten years, which was less than the top of the guidelines range,

pursuant    to    USSG     § 5G1.1(c)(1),            Smith’s      guidelines          range    on

Count     Three      became       110      to        120      months’       imprisonment.

Additionally,       pursuant       to    USSG        § 2K2.4,       Smith’s       guidelines

sentence on Count Two was five years’ imprisonment.

            Smith sought a downward variance sentence based on the

disparity     between       sentences         for        powder     cocaine       and    crack

cocaine.         After     analyzing     the        18     U.S.C.    §    3553(a)        (2006)

sentencing       factors    and    considering            Smith’s        arguments       for    a

below-guidelines         sentence,      the    district        court      again       sentenced

Smith to 197 months’ imprisonment.                   Smith timely appealed.

            Counsel       has    filed     a       brief    pursuant       to     Anders       v.

California, 386 U.S. 738 (1967), finding no meritorious grounds

for     appeal    but     questioning          the       reasonableness          of     Smith’s

sentence.        Smith filed a pro se supplemental brief asserting

additional claims.         For the reasons that follow, we affirm.

             This    court       reviews       a    sentence      for     reasonableness,

applying    an    abuse     of    discretion          standard.           Gall    v.     United

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

Llamas, 599 F.3d 381, 387 (4th Cir. 2010).                         This review requires

appellate consideration of both the procedural and substantive

reasonableness of a sentence.                  Gall, 552 U.S. at 51.

            In determining procedural reasonableness, we consider

whether the district court properly calculated the defendant’s

advisory   guidelines         range,      considered         the       §    3553(a)    factors,

analyzed     any       arguments          presented          by    the         parties,       and

sufficiently explained the selected sentence.                                Id.    “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) (internal quotation marks omitted).

            After       reviewing        the     record,      we       conclude       that    the

district court properly calculated Smith’s advisory guidelines

range, considered the § 3553(a) factors, analyzed the arguments

presented by the parties, and gave a thorough explanation of the

sentence it selected.               We therefore hold that Smith’s sentence

is   procedurally       reasonable.             Where      there       is    “no    significant

procedural       error,”      the    court       next      assesses          the    substantive

reasonableness         of    the     sentence,        taking       “‘into          account    the

totality    of    the       circumstances,          including          the    extent    of    any

variance from the Guidelines range.’”                        United States v. Morace,

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594 F.3d 340, 346-47 (4th Cir.) (quoting Gall, 552 U.S. at 51),

cert. denied, 131 S. Ct. 307 (2010).

              Smith’s counsel questions whether the district court

clearly erred by finding that Smith “probably” flushed drugs

down the toilet and therefore probably possessed more than the

49.59 grams of crack attributable to him in the PSR.                              The court

found   that    a    preponderance        of       the   evidence       established     that

Smith   “probably”      was    involved        with      more    than    fifty    grams   of

crack because, when the officers executed the search warrant and

entered his residence, they heard a toilet flush and encountered

Smith   emerging      from    the   bathroom.            Inside       the   bathroom,     the

officers discovered a glass plate with a small rock of crack,

two sets of scales, and a razor blade.

              Although the court determined Smith’s offense level,

and   hence    his   guidelines       range,        solely      upon    the    49.59   grams

seized from his bedroom, the issue of drugs flushed down the

toilet arose in the context of Smith’s request for a variance.

Specifically, the court rejected counsel’s assertion that Smith

was merely a low level dealer when arguing for the variance,

based in part on its conclusion that Smith had probably flushed

additional drugs down the toilet and therefore was involved with

more than 49.59 grams of crack.

              Emphasizing      that   a    search        of     the    sewer   lines    from

Smith’s   residence          revealed     no        contraband,         Smith’s     counsel

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suggests   that    the    court   clearly          erred   by    finding    that    Smith

“probably” flushed drugs down the toilet.                       We disagree.        Given

that there was crack belonging to Smith elsewhere in the house,

a small quantity of crack in the bathroom along with indicia of

drug dealing, and the fact that Smith flushed the toilet and

emerged from the bathroom as the officers entered the residence,

we conclude that the court did not clearly err by finding that

it was more likely than not that Smith flushed drugs down the

toilet and therefore was probably involved with more than the

49.59   grams    for    which    he    was       held   accountable.        Cf.    United

States v. Kiulin, 360 F.3d 456, 461 (4th Cir. 2004) (holding

that preponderance of the evidence supported findings of drug

quantity for sentencing purposes where it “was more likely than

not that the defendant was responsible for at least the drug

quantity attributed to him”).

           Next,       Smith’s    counsel         questions      whether    the    court

failed to adequately consider the disparity between the powder

cocaine and crack cocaine guidelines when sentencing Smith to a

within-guidelines sentence.                 The court addressed the issue at

length with counsel, noting that Smith obtained the benefit of

the 2007 amendments to the crack guidelines and stating that,

although   the     court    had       the    discretion       to   impose    a     lesser

sentence, it was not obligated to do so.                        The court found that

Smith was more than a low level dealer based on the quantity of

                                             6
drugs seized and the likelihood that he had flushed more drugs

down the toilet.       The court concluded that a sentence within the

guidelines range, rather than a downwardly variant sentence, was

warranted because Smith utilized guns in his drug activities,

creating a risk of violence.

           In Kimbrough v. United States, 552 U.S. 85 (2007), the

Supreme Court established that a district court does not abuse

its discretion by varying from the sentencing guidelines if it

has a policy disagreement concerning the disparity between crack

and powder cocaine sentences.       See Spears v. United States, 555

U.S. 261, ___, 129 S. Ct. 840, 843 (2009).                However, lower

courts have held that Kimbrough does not require a court to

impose a sentence below the guidelines range if it does not have

a policy disagreement with the guidelines.              United States v.

Lopez-Reyes, 589 F.3d 667, 671 (3d Cir. 2009), cert. denied, 130

S. Ct. 2362 (2010); United States v. Caldwell, 585 F.3d 1347,

1355 (10th Cir. 2009), cert. denied, 131 S. Ct. 209 (2010);

United States. v. Roberson, 517 F.3d 990, 995 (8th Cir. 2008).

Here, Smith received the benefit of the 2007 amendments to the

sentencing guidelines designed to address the powder cocaine/

crack cocaine sentencing disparity.             By emphasizing that its

concern   was   with   the   combination   of   drugs   with   firearms   in

Smith’s case and not with any continuing disparity between the

sentences for crack and powder cocaine offenses, we conclude

                                    7
that the district court implied that it did not have a policy

disagreement with the guidelines.                        Because the district court

was not obligated to vary from that guidelines range under these

circumstances, the court’s decision not to downwardly vary did

not render Smith’s sentence substantively unreasonable.

                 In accordance with Anders, we have reviewed the record

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

We therefore affirm Smith’s sentence. ∗                    Smith’s motion to file an

amended      pro    se    supplemental         brief      is     denied.      This     court

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

petition     the     Supreme     Court    of       the   United    States     for    further

review.      If Smith 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 Smith.             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



      ∗
       We conclude after our thorough review of Smith’s pro se
supplemental brief that he is not entitled to relief on any of
his pro se claims.



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