                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4340


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TERRANCE DEANDREW BACKUS,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:08-cr-00128-MR-DLH-3)


Submitted:   December 6, 2010             Decided:   December 28, 2010


Before WILKINSON, DUNCAN, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Samuel B. Winthrop, WINTHROP AND WINTHROP, Statesville, 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Unpublished opinions are not binding precedent in this circuit.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:

              Terrance       Deandrew             Backus        appeals        the     262-month

sentence      imposed      following         his      guilty     plea     to    conspiracy        to

possess with intent to distribute cocaine base, in violation of

21   U.S.C.     §    846   (2006).           On       appeal,    counsel       filed    a     brief

pursuant to Anders v. California, 386 U.S. 738 (1967), asserting

that there are no meritorious grounds for appeal but questioning

whether the district court should have granted, sua sponte, a

downward   departure        based       on    the       significant       overstatement           of

Backus’s criminal history category and whether the sentence was

unreasonable because the district court failed to consider a

downward variance based on a one-to-one ratio of crack-to-powder

cocaine.        Backus     filed    a    pro       se    supplemental          brief    alleging

ineffective         assistance      of       appellate          counsel.             Finding     no

reversible error, we affirm.

              Counsel first argues that Backus’s criminal history is

overstated and that the district court erred in failing to grant

a    downward       departure    from        criminal        history       category         VI   to

criminal      history      category      V.            The   district          court    has      the

discretion to depart downward one criminal history category for

a career offender “[i]f reliable information indicates that the

defendant’s         criminal       history            category     substantially              over-

represents the seriousness of the defendant’s criminal history

or the likelihood that the defendant will commit other crimes.”

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U.S. Sentencing Guidelines Manual § 4A1.3(b)(1), (3)(A) (2008).

However, “[w]e lack 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. Brewer,

520 F.3d 367, 371 (4th Cir. 2008).                      Upon review, we conclude

that the record does not reveal that the district court failed

to recognize its authority to depart.                       See United States v.

Draffin, 286 F.3d 606, 610 (D.C. Cir. 2002).                         Thus, Backus’s

claim is not reviewable on appeal.

               Counsel      also    argues       that    Backus’s     sentence      was

unreasonable because the district court failed to consider a

downward variance based on a one-to-one crack-to-powder ratio.

Because   Backus       raises      this    argument     for    the   first   time    on

appeal, we review for plain error.                  United States v. Branch, 537

F.3d 328, 343 (4th Cir. 2008).                   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).

               Under   the   advisory      Guidelines,        “district    courts   are

entitled to reject and vary categorically from the crack-cocaine

Guidelines          based    on     a     policy     disagreement         with   those

Guidelines.”         Spears v. United States, ___ U.S. ___, 129 S. Ct.

840, 843-44 (2009).          The district court is not required to apply

a one-to-one ratio; Spears merely permits a district court to

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substitute    its    own   ratio     if       it     determines      the   sentencing

disparity is unwarranted.           Upon review, we conclude that the

district court did not err in failing to consider a downward

variance     based   on    the     crack-to-powder            cocaine      sentencing

disparity.

           In the pro se supplemental brief, Backus argues that

appellate counsel was ineffective for failing to consult with

him prior to filing the Anders brief and for failing to pursue

certain “obvious” arguments.           “A defendant can raise the claim

of ineffective assistance of counsel . . . on direct appeal if

and only if it conclusively appears from the record that his

counsel did not provide effective assistance . . . .”                            United

States v. Martinez, 136 F.3d 972, 979 (4th Cir. 1998).                      To prove

ineffective     assistance       the      defendant          must      satisfy     two

requirements: (1) “that counsel’s representation fell below an

objective standard of reasonableness”; and (2) “that there is a

reasonable    probability    that,     but         for   counsel’s    unprofessional

errors, the result of the proceeding would have been different.”

Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).                            We

conclude that the record does not conclusively demonstrate that

counsel was ineffective; thus, we decline to consider Backus’s

ineffective assistance claim on direct appeal.

           In accordance with Anders, we have reviewed the record

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

                                          4
We therefore affirm the district court’s judgment.                              This court

requires that counsel inform Backus, in writing, of his right to

petition    the   Supreme       Court    of       the   United      States     for   further

review.     If    Backus       requests       that      a   petition      be   filed,      but

counsel    believes      that     such    a       petition     would      be    frivolous,

counsel    may    move   in     this     court      for     leave    to   withdraw         from

representation.       Counsel’s motion must state that a copy thereof

was served on Backus.             We dispense with oral argument because

the facts and legal conclusions are adequately presented in the

materials    before      the    court     and       argument     would       not     aid    the

decisional process.

                                                                                     AFFIRMED




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