                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 08-4750


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MICHAEL DALE HONEYCUTT,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (1:06-cr-00031-LHT-8)


Submitted:   July 23, 2009                 Decided:   March 4, 2010


Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, 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Unpublished opinions are not binding precedent in this circuit.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:

            Michael      Dale     Honeycutt      pled    guilty      pursuant     to    a

written plea agreement * to one count of conspiracy to manufacture

and to possess with intent to distribute methamphetamine, in

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

sentenced to 168 months in prison.               Honeycutt timely appeals.

            Counsel for Honeycutt filed a brief in accordance with

Anders v. California, 386 U.S. 738 (1967), certifying that there

are no meritorious grounds for appeal, but questioning whether

the   district       court       erred    in     applying       a    presumption       of

reasonableness to the range of imprisonment prescribed by the

guidelines.        In addition, Honeycutt has filed a pro se brief.

Finding no reversible error, we affirm.

            Honeycutt contends that the district court’s language

at the plea colloquy advising him that “in some circumstances”

the court could impose a sentence that differed from the range

prescribed     by    the     sentencing    guidelines       indicated         that     the

district      court         improperly         applied      a       presumption        of

reasonableness      to     the    guidelines      sentencing        range.      Such    a

      *
       Honeycutt’s plea agreement contained a waiver of appellate
rights.   However, because the Government does not invoke the
waiver, we decline to enforce it.         See United States v.
Poindexter, 492 F.3d 263, 271 (4th Cir. 2007) (where Anders
brief is filed, “the government is free to file a responsive
brief raising the waiver issue (if applicable) or do nothing,
allowing this court to perform the required Anders review”).



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presumption may not be applied by the sentencing court.                               Rita v.

United States, 551 U.S. 338, 351 (2007); see also Nelson v.

United    States,     129    S.    Ct.    890,       892    (2009);       Gall   v.    United

States, 552 U.S. 38, 50 (2007).                      We conclude that the phrase

emphasized by counsel, whether considered in isolation or in the

totality of the district court’s statements at the Rule 11 plea

hearing and at sentencing, does not show that the district court

applied a presumption of reasonableness.

            We have reviewed Honeycutt’s pro se supplemental brief

and find no merit to his claim.                     In accordance with Anders, we

have    reviewed     the     record      in    this        case    and    have    found    no

meritorious issues for appeal.                 We therefore affirm the district

court’s    judgment.         This      court        requires      that    counsel      inform

Honeycutt,      in   writing,     of     the       right    to    petition      the   Supreme

Court of the United States for further review.                               If Honeycutt

requests that a petition be filed, but counsel believes that

such a petition would be 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 Honeycutt.

            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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