                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4236


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

DWANE EDWARD CHERRY,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.    Deborah K. Chasanow, District Judge.
(8:03-cr-00316-DKC-1)


Submitted:    February 5, 2009              Decided:   March 5, 2009


Before NIEMEYER, TRAXLER, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


J. James Roos, III, THE LAW OFFICES OF J. JAMES ROOS, III,
Towson,   Maryland, for Appellant. Barbara  Suzanne Skalla,
Assistant United States Attorney, Greenbelt, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              After a bench trial, Dwane Edward Cherry was found

guilty   of    possession   of   a    firearm   by    a   convicted   felon   and

possession of a controlled substance.                The district court found

that Cherry was an Armed Career Criminal and that his Guidelines

range was 188-235 months.        The court sentenced him to 188 months

in prison.      On appeal, Cherry alleged that the district court’s

determination that a juvenile conviction for attempted murder

and use of a handgun was a “violent felony” for Armed Career

Criminal      purposes   violated     his   Sixth    Amendment   rights   under

United States v. Booker, 543 U.S. 220 (2005).                    We agreed and

remanded for resentencing.           United States v. Cherry, No. 04-4253

(4th Cir. Aug. 9, 2006) (unpublished).

              At resentencing, the parties agreed that Cherry was

not an Armed Career Criminal and that the appropriate Guidelines

range was 92-115 months in prison.                  After the district court

heard extensive evidence on Cherry’s mental condition, Cherry

argued for a sentence of time served.                 The Government asserted

that Cherry should be sentenced within the amended Guidelines

range.     The district court found that Cherry suffered from a

mental illness, but that his condition did not significantly

impair his ability to reason and control his behavior.                    Thus,

the court found that Cherry did not qualify for a diminished

capacity or mental condition departure.                   The court also found

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that the Bureau of Prisons was capable of providing Cherry with

adequate treatment and counseling and that his work and personal

history were not extraordinary enough to warrant a departure.

Nonetheless,         the    court     found       that    a     variance          sentence     was

appropriate,         based      on    Cherry’s        mental          condition          and    his

acceptance          of     responsibility          during           the     course       of     his

imprisonment.            Thus, the court sentenced Cherry to 72 months in

prison, of which Cherry had 18 months remaining to serve.

               On    appeal,     Cherry’s         attorney       has      filed     an    Anders *

brief,    concluding          that    there   are        no    meritorious          issues     for

appeal but questioning whether Cherry’s sentence was reasonable.

Cherry has filed a pro se supplemental brief; however, it is

merely    a    collection       of    documents      dated          prior    to    his    amended

judgment and does not address his final sentence.

               We    review    sentences      imposed          by    district       courts     for

reasonableness,            applying     an    abuse       of         discretion      standard.

Gall v.       United      States,     128    S.    Ct.        586,    597    (2007).           When

sentencing a defendant, a district court must first properly

calculate the Guidelines range.                     Id. at 596.             Next, the court

should give the parties the opportunity to argue for whatever

sentence they deem appropriate.                   The court is then instructed to

consider the 18 U.S.C. § 3553 (2006) factors in light of the

     *
         Anders v. California, 386 U.S. 738 (1967).



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parties’     requests       with    respect          to    the       sentence.         United

States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).

            Upon     review,       we    must     first      determine        whether      the

district court committed any significant procedural error, such

as     improperly    calculating         the     Guideline           range,     failing    to

consider the statutory factors, or failing to explain the chosen

sentence.       Gall, 128 S. Ct. at 597.                  If we find the sentence is

procedurally        sound,     we        next        consider          the      substantive

reasonableness of the sentence.                Id.

            Here,     the    district          court       properly      calculated        the

Guidelines range of imprisonment without objection and permitted

counsel to speak at length and present several witnesses.                                  The

court     then     gave     reasons       for     rejecting           various        downward

departures.       Finally, the court granted a downward variance and

gave    lengthy     reasoning.          Because      there    was      no    error    in   the

application of the Guidelines, the district court considered the

§ 3553 factors, and the court supported the sentence imposed

with appropriate reasoning, there was no abuse of discretion,

and we find that the sentence is reasonable.

            Accordingly,       we       affirm       Cherry’s         amended     sentence.

This court requires that counsel inform his client, in writing,

of his right to petition the Supreme Court of the United States

for further review.          If the client requests that a petition be

filed,    but     counsel    believes      that       such       a   petition     would     be

                                            4
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 the client.     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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