                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-4028


UNITED STATES OF AMERICA,

                Plaintiff -   Appellee,

          v.

TIMOTHY DARNELL BLACKWELL,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:07-cr-00385-JAB-1)


Submitted:   February 23, 2010              Decided:   March 15, 2010


Before NIEMEYER, KING, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Louis C. Allen, Federal Public Defender, Greensboro, North
Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Angela H. Miller, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Timothy Darnell Blackwell appeals his sentence after

pleading     guilty        to     attempting       to     possess     with    intent    to

distribute 35.8 grams of cocaine base, in violation of 21 U.S.C.

§§   841(a)(1), 841(b)(1)(b), 846 (2006).                    On appeal, he contends

that his sentence is unreasonably high because he was sentenced

as a career offender, and the district court failed to account

for the cocaine/cocaine base sentencing disparity.                         We affirm.

             We review a sentence imposed by the district court

under a deferential abuse-of-discretion standard.                            See Gall v.

United States, 552 U.S. 38, 51 (2007).                      The first step in this

review requires us to ensure that the district court committed

no significant procedural error, such as improperly calculating

the guideline range, failing to consider the 18 U.S.C. § 3553(a)

(2006) factors, or failing to adequately explain the sentence.

United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009).                             We

then   consider      the    substantive        reasonableness         of    the    sentence

imposed, taking into account the totality of the circumstances.

Gall, 552 U.S. at 51.               On appeal, we presume that a sentence

within   a   properly           calculated    guideline       range    is    reasonable.

United States v. Allen, 491 F.3d 178, 192 (4th Cir. 2007).

             Based    on        Blackwell’s       prior    convictions       for    felony

assault with a deadly weapon with intent to kill and felony

conspiracy     to     commit       armed     robbery,       the     probation      officer

                                              2
determined that he was a career offender under U.S. Sentencing

Guidelines Manual § 4B1.1(a) (2007).          As his statutory maximum

for the instant offense was forty years, his offense level was

thirty-four under USSG § 4B1.1(b).       With a three-level reduction

for acceptance of responsibility and criminal history category

VI, Blackwell’s advisory guideline range was 188 to 235 months

in prison.   Based on his substantial assistance, the Government

moved for a reduction of sentence under USSG § 5K1.1 and 18

U.S.C. § 3553(e) (2006), recommending that the district court

depart downward by forty percent from the applicable advisory

guideline range.    This range would be 112.8 to 141 months.

           Blackwell did not object to the facts or guideline

calculations in the presentence report.        However, he argued that

the   district   court   should   sentence   him   below   his   applicable

guideline range based on the cocaine/cocaine base disparity, and

specifically, that he should be sentenced within the range that

would be applicable if his offense involved powder cocaine and

his statutory maximum was only twenty years.               After a forty

percent reduction, this range would be 90.6 to 112.8 months.

The Government noted that the Sentencing Commission is required

by 18 U.S.C. § 994(h) (2006) to assure that career offenders

receive a sentence at or near the maximum term authorized, and

argued a reasonable sentence would be within his career offender

range after reduction based on the Government’s motion.

                                     3
               The district court imposed a sentence of 120 months in

prison.    In explaining its sentence, the court noted that it had

considered the parties’ arguments concerning the cocaine/cocaine

base disparity and the career offender guideline; that it had

discretion under Kimbrough v. United States, 552 U.S. 85 (2007),

to take any disparities into account; and that it had taken the

disparities into account in selecting a sentence.                        Considering

all the factors in the case, the district court made a finding

in its discretion that Blackwell’s sentencing range based on the

career offender guideline provided an appropriate starting point

in   determining         his   sentence,       and   the      court     granted     the

Government’s recommended forty percent downward departure.

               On   appeal,    Blackwell       argues   that    his     sentence      is

unreasonably high because it is based on an “unjust disparity

between    a    career    offender   sentenced       for   crack      cocaine   and    a

career offender sentenced for powder cocaine.”                     As the district

court noted, it had discretion to consider Blackwell’s disparity

arguments in selecting a sentence, and it did so.                        We conclude

that the court did not abuse its discretion in sentencing him

based on the career offender guideline in this case, and his

sentence is both procedurally and substantively reasonable.

               We therefore affirm the district court’s judgment.                     We

dispense       with   oral     argument    because      the     facts     and     legal



                                           4
contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                           AFFIRMED




                                5
