                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4878


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

TODD ALLEN SPENCER,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News.    Rebecca Beach Smith,
District Judge. (4:10-cr-00021-RBS-FBS-1)


Submitted:   May 31, 2011                 Decided:   June 14, 2011


Before SHEDD, DUNCAN, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mark Diamond, Richmond, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Scott W. Putney, Assistant
United States Attorney, Newport News, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Todd Allen Spencer appeals his conviction and sentence

based on his guilty plea to one count of escaping from custody,

in violation of 18 U.S.C. § 751(a) (2006).                     We affirm.

            On appeal Spencer first contends that his plea was

unknowing      and      involuntary         because     the    district       court     made

misrepresentations of law and fact at his plea hearing.                              Because

Spencer withdrew his motion to withdraw his guilty plea in the

district court and did not raise any objections during the Rule

11 plea colloquy, the plea colloquy is reviewed for plain error.

United States v. General, 278 F.3d 389, 393 (4th Cir. 2002);

United States v. Martinez, 277 F.3d 517, 524-27 (4th Cir. 2002).

To   demonstrate         plain       error,     a     defendant      must     show     that:

(1) there was an error; (2) the error was plain; and (3) the

error    affected       his    “substantial         rights.”         United    States     v.

Olano,   507    U.S.     725,    732    (1993).         A    defendant’s      substantial

rights   are    affected        if    the     court    determines      that    the     error

“influenced       the     defendant’s         decision        to   plead      guilty     and

impaired    his      ability     to    evaluate       with    eyes    open    the     direct

attendant risks of accepting criminal responsibility.”                                United

States v. Goins, 51 F.3d 400, 402-03 (4th Cir. 1995) (internal

quotation marks omitted); see also Martinez, 277 F.3d at 532

(holding that defendant must demonstrate he would not have pled

guilty but for the error).                  Our review of the record indicates

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that the district court did not err, much less plainly so, in

accepting Spencer’s plea.

               Next Spencer contends that the district court erred in

failing to adequately consider the statutory sentencing factors

and to adequately state its reasons for the chosen sentence.

This court reviews a sentence for reasonableness, applying an

abuse of discretion standard.               Gall v. United States, 552 U.S.

38, 51 (2007); United States v. Layton, 564 F.3d 330, 335 (4th

Cir. 2009).         In so doing, the court first examines the sentence

for    “significant        procedural       error,”    including       “failing       to

calculate      (or     improperly       calculating)    the       Guidelines     range,

treating the Guidelines as mandatory, failing to consider the

§ 3553(a)       factors,    selecting       a     sentence    based        on   clearly

erroneous facts, or failing to adequately explain the chosen

sentence.”          Gall, 552 U.S. at 51.           The district court is not

required       to     “robotically       tick     through     § 3553(a)’s         every

subsection.”         United States v. Johnson, 445 F.3d 339, 345 (4th

Cir. 2006).          However, the district court “must place on the

record an ‘individualized assessment’ based on the particular

facts of the case before it.                    This individualized assessment

need    not    be     elaborate    or    lengthy,     but    it    must     provide   a

rationale tailored to the particular case at hand and adequate

to    permit    ‘meaningful       appellate      review.’”        United    States    v.

Carter, 564 F.3d 325, 330 (4th Cir. 2009) (quoting Gall, 552

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U.S. at 50) (internal footnote omitted).        A reviewing court then

considers    the    substantive    reasonableness     of   the    sentence

imposed, taking into account the totality of the circumstances.

Gall, 552 U.S. at 51.        After reviewing the record, we conclude

that Spencer’s sentence was both procedurally and substantively

reasonable. *

            Lastly, Spencer claims that the district court failed

to depart pursuant to U.S. Sentencing Guidelines Manual § 5K2.13

(2009) because it did not understand the extent of its authority

to do so.       “An appellate court lacks the authority to review a

sentencing court’s denial of a downward departure unless the

court failed to understand its authority to do so.”                 United

States v. Herder, 594 F.3d 352, 362 (4th Cir. 2010) (internal

quotation marks omitted).         Because the district court clearly

understood its authority to depart from the Guidelines, we lack

authority to review this claim.

            Accordingly, we affirm the judgment of the district

court.     We dispense with oral argument because the facts and

legal    contentions   are   adequately   presented   in   the   materials


     *
       In concluding that the basis for the district court’s
chosen sentence articulated at the sentencing hearing fully
satisfied Gall’s requirements, we reject Spencer’s argument that
the court’s failure to also prepare a written statement
explaining its decision to sentence him outside of the
applicable Guidelines range constitutes reversible error.



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before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                    AFFIRMED




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