                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-4787


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

DONALD EDWARD BYRD,

                  Defendant – Appellant,


DONNA C. ADKINS; ALISIA H. AKBAR; CHERYL L. AMAKER; LACARIA
BROWN; LUTHER BRYAN; CHASE MANHATTAN MORTGAGE CORPORATION;
LAVACA COUNTY TEXAS; RANDY MARTIN; GEORGEAN MCCONNELL;
JOSEPH E. MCCONNELL; CHRISTOPHER M. MORRIS; FLORENCE
NOLLKAMPER; GUSSIE D. NOLLKAMPER; JOHN M. WARTHER; WELLS
FARGO HOME MORTGAGE, INCORPORATED,

                  Parties-in-Interest.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.   Cameron McGowan Currie, District
Judge. (3:02-cr-00548-CMC-19)


Submitted:    April 22, 2009                  Decided:   May 8, 2009


Before WILLIAMS, Chief Judge, DUNCAN, Circuit Judge, and John
Preston BAILEY, Chief United States District Judge for the
Northern District of West Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.
Matthew A. Victor, VICTOR VICTOR & HELGOE LLP, Charleston, West
Virginia, for Appellant.      Beth Drake, Mark C. Moore, Jane
Barrett Taylor, Assistant United States Attorneys, Columbia,
South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

            Donald    Edward          Byrd       was     convicted         by       a    jury        of

conspiracy to distribute five kilograms or more of cocaine and

fifty grams or more of cocaine base, in violation of 21 U.S.C.

§§   841(a)(1),     846    (2006),         and       possession      of   a     firearm         by    a

felon, in violation of 18 U.S.C. § 922(g)(1) (2006), and was

sentenced to life in prison.                         Byrd appealed, challenging his

convictions and sentence.                  We affirmed Byrd’s convictions and

rejected claims relating to his sentence, but because he was

sentenced     under       the     then-mandatory               Sentencing           Guidelines,

vacated    and   remanded       for    resentencing            consistent           with    United

States v. Booker, 543 U.S. 220 (2005).                            See United States v.

Davis, 270 F. App’x 236 (4th Cir. March 17, 2008) (unpublished).

            On    remand,       the    district         court       imposed      a       300-month

variant sentence and Byrd timely appealed.                           Counsel for Byrd has

filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967),    explaining      that       he    found       no    meritorious           grounds      for

appeal     but    suggesting          that           Byrd’s     variant         sentence             is

unreasonable.        Counsel also moved for permission to withdraw

from further representation of Byrd.                         Byrd has not filed a pro

se   supplemental     brief      but       has       moved    for    appointment           of    new

counsel.      The    Government        has       declined       to    file      a       responding

brief.      Finding       no    error,       we       affirm    the       district         court’s

judgment and deny the pending motions.

                                                 3
              In     accordance         with        Anders,          we     have        reviewed      the

record in this case and have found no meritorious issues for

review.            After         Booker,        a     sentence               is      reviewed         for

reasonableness, using an abuse of discretion standard of review.

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

step   in     this    review       requires         the        court      to      ensure       that   the

district      court        committed       no        significant               procedural        error.

United    States      v.    Evans,      526     F.3d       155,        161      (4th     Cir.    2008).

Assuming the district court committed no significant procedural

error,      this      court        must        next        consider               the     substantive

reasonableness of the sentence imposed, taking into account the

totality of the circumstances.                  Id. at 161-62.

              While the court may presume that a sentence within the

Guidelines      range       is    reasonable,             it    may       not      presume      that   a

sentence outside the Guidelines range is unreasonable.                                             Gall,

128 S. Ct. at 597; see United States v. Abu Ali, 528 F.3d 210,

261    (4th    Cir.    2008)       (“[A]       sentence          that        deviates       from      the

Guidelines      is    reviewed       under          the    same        deferential          abuse-of-

discretion standard as a sentence imposed within the applicable

guidelines      range.”),         cert.    denied,             129     S.      Ct.      1312    (2009).

Rather, in reviewing a sentence outside the Guidelines range, we

“consider      the    extent       of     the       deviation,            but      must     give      due

deference to the district court's decision that the § 3553(a)

factors, on a whole, justify the extent of the variance.”                                          Gall,

                                                 4
128 S. Ct. at 597.               Even if this court would have imposed a

different sentence, this fact alone will not justify vacatur of

the district court’s sentence.              Id.

             We    find       the     district      court’s       300-month      variant

sentence    to     be    reasonable.         On    remand,      the     district      court

entertained counsel’s argument regarding the weight that should

be afforded the § 3553(a) factors, allowed Byrd an opportunity

to allocute, and thoroughly considered the § 3553(a) factors

before imposing Byrd’s sentence.                  We conclude that the district

court     adequately       explained      its     rationale       for    imposing      the

variant     sentence      and     that    the     reasons     relied     upon    by    the

district    court       are   valid      considerations       under      § 3553(a)     and

justify    the    sentence       imposed.        See   United     States    v.   Pauley,

511 F.3d 468, 473-76 (4th Cir. 2007).

            Having reviewed the record in this case and finding no

meritorious       issues      for     review,     we   deny     Byrd’s     motion      for

appointment       of    new   counsel      and    affirm    the    district      court’s

judgment.        At this juncture, we also deny counsel’s motion to

withdraw    from       further      representation     of     Byrd.       Rather,     this

court requires that counsel inform Byrd in writing of his right

to petition the Supreme Court of the United States for further

review.     If Byrd requests that a petition be filed, but counsel

believes that such a petition would be frivolous, then counsel

may move this court for leave to withdraw from representation.

                                            5
Counsel's motion must state that a copy thereof was served on

Byrd.      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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