                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-4079


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

DACIOUS LAMONT SMITH,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:08-cr-00045-F-1)


Submitted:    December 17, 2009            Decided:   December 28, 2009


Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Geoffrey W. Hosford, HOSFORD & HOSFORD, P.C., Wilmington, North
Carolina, for Appellant.    George E. B. Holding, United States
Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                Dacious    Lamont    Smith       pled   guilty,    without       a     plea

agreement, to conspiracy to distribute and possess with intent

to distribute at least five grams of cocaine base, in violation

of    21   U.S.C.    §§ 841(a)(1),        846    (2006),   using   and        carrying     a

firearm during and in relation to, and possessing the firearm in

furtherance of, a drug trafficking crime, in violation of 18

U.S.C. § 924(c) (2006), and possessing a firearm after having

been convicted of a crime punishable by more than one year of

imprisonment, in violation of 18 U.S.C. § 922(g)(1) (2006).                               On

appeal,     he    argues    that    the   district      court’s    imposition        of    a

sentence of 131 months of imprisonment was not reasonable, and

that his sentence must be vacated and remanded for resentencing

pursuant to the Supreme Court’s decisions in Nelson v. United

States, 129 S. Ct. 890 (2009), and Spears v. United States, 129

S. Ct. 840 (2009).          We affirm.

                Smith does not assert any specific error committed by

the district court in selecting his sentence, but argues that

the factors in 18 U.S.C. § 3553(a) (2006) supported a sentence

at the mandatory minimum term of 120 months of imprisonment.                              We

review      a    sentence     for    reasonableness        under     an        abuse      of

discretion standard.           Gall v. United States, 552 U.S. 38, 51

(2007).         This review requires appellate consideration of both

the    procedural     and    substantive         reasonableness    of     a    sentence.

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Id.      After       determining      whether      the    district    court      properly

calculated the defendant’s advisory guidelines range, this court

must then consider whether the district court considered the

factors in 18 U.S.C. § 3553(a) (2006), analyzed the arguments

presented       by     the     parties,      and    sufficiently      explained        the

selected sentence.           Id.; United States v. Carter, 564 F.3d 325,

330     (4th    Cir.    2009).         Finally,      we   review     the    substantive

reasonableness of the sentence.                    United States v. Pauley, 511

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

               Our review of the record leads us to conclude that the

district       court    committed      no    procedural      error    in     this   case.

Turning to the substantive reasonableness of the sentence, this

court    presumes       that    a    sentence      imposed   within        the   properly

calculated       guidelines         range    is    reasonable.       Rita     v.    United

States, 551 U.S. 338, 347 (2007); United States v. Smith, 566

F.3d 410, 414 (4th Cir. 2009).                      Applying the presumption of

reasonableness         to    Smith’s        within-guidelines        sentence,      which

Smith fails to rebut on appeal, we find that the district court

did not abuse its discretion in imposing a 131-month sentence.

Thus, the sentence is reasonable.

               At the time Smith was sentenced, the Supreme Court had

decided in Kimbrough v. United States, 552 U.S. 85 (2007), that

courts are permitted to vary downward from a sentencing range

based on the Sentencing Guidelines’ 100-to-1 cocaine base to

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cocaine powder sentencing ratio if the resulting sentence under

the Guidelines would be greater than necessary to achieve the

objectives set forth in § 3553(a).                 Id. at 110-11.       The decision

in Spears expanded upon Kimbrough’s holding by clarifying “that

the     district       courts         are    entitled     to   reject        and     vary

categorically         from   the      crack-cocaine       Guidelines    based      on    a

policy disagreement with those Guidelines.”                    Spears, 129 S. Ct.

at 843-44.          Nelson did not address Kimbrough, but held that the

presumption of reasonableness accorded to a within-Guidelines

sentence is an appellate presumption that may not be considered

by the district court in selecting a sentence.                        Nelson, 129 S.

Ct. at 892.           In this case, there is no indication that the

district court did not realize its discretion to select a lower

sentence based on the crack-powder disparity, and the district

court    did    not    presume     the      Guidelines    sentencing    range      to   be

reasonable.          Thus, we conclude that this argument is without

merit.

               We    therefore     affirm     Smith’s     sentence.         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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