                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 09-4619


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

TODD LAMEL MYERS,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(4:08-cr-00746-TLW-3)


Submitted:   July 26, 2010                 Decided:   August 17, 2010


Before KING, DAVIS, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael Chesser, Aiken, South Carolina, for Appellant. Kevin F.
McDonald,   Acting  United   States  Attorney,  Columbia, South
Carolina, A. Bradley Parham, Assistant United States Attorney,
Florence, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Todd     Lamel     Myers       appeals           his     within-guidelines

sentence following a guilty plea to conspiracy to distribute

cocaine base in violation of 21 U.S.C. § 846 (2006).                          We affirm.

            This court reviews within-guidelines sentences                           under

a “deferential abuse-of discretion standard,” and only reverses

errors     that      are      “significant.”                   United       States      v.

Mendoza-Mendoza,      597    F.3d    212,       219     (4th       Cir.   2010)   (citing

Gall v.    United    States,    552       U.S.        38,    51-52    (2007)).       This

standard of review applies to alleged Rita * errors with the same

force that it applies to “all other[]” perceived errors.                              Id.

Moreover, this court applies a presumption of reasonableness to

within-guidelines sentences.               E.g., United States v. Go, 571

F.3d 216, 218 (4th Cir. 2008).

            District       courts    do    not,        however,       apply    the    same

presumption    of    reasonableness            to     the    sentencing       guidelines.

Mendoza-Mendoza,       597    F.3d        at        216-17     (citations       omitted).

Instead, they must make an “individualized assessment” for each

defendant.    Id.    (Significantly less explanation is required for

a within-guidelines sentence than for one outside the advisory

range).      Myers   alleges    that       the       district       court   committed   a

procedural Rita error by applying an “implicit” or “de facto”

     *
         See Rita v. United States, 551 U.S. 338, 351 (2007).



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presumption in favor of a guideline sentence.                             In support of his

argument, he cites to the district court’s statement that the

advisory guidelines “provide a reasonable basis” for imposing a

sentence.

             This       court         addressed            in       Mendoza-Mendoza             the

appropriate       touchstone          for     evaluating            the    sort        of   “Rita

presumption”      that    Myers       asserts         occurred      here.         597    F.3d     at

216-20.     In that case, we stated that “[i]f the sentencing court

did what it was supposed to do – hearing out both sides and

making an individualized assessment in light of § 3553(a) – then

it should be protected from claims of having applied a Rita

presumption.”          Id. at 218.          Here, Myers has not argued that he

was denied an opportunity to be heard or that the court failed

to individually assess him at sentencing.                                 Accord Edwards v.

City   of    Goldsboro,        178     F.3d       231,      241    n.6     (4th    Cir.     1999)

(failure    to    specifically         raise          an   issue    in    an    opening     brief

results in abandonment of that issue).

             Moreover, after independently reviewing the record, it

is clear that the district court: (1) paid attention to Myers’

arguments;       (2)    was    familiar           with     the     cases       counsel      cited,

including     Rita;      (3)        considered         itself       to    be    the     ultimate

authority    in     deciding        Myers’        sentence;        (4)    considered        the    §

3553(a)     factors     to     be    of     the       utmost      importance      in     deciding

Myers’ sentence; and (5) considered the advisory guidelines to

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be secondary factors.         Further, when confronted with additional

arguments why Myers should be sentenced to a below-guidelines

sentence (i.e., his criminal history was relatively “minor,” and

a long sentence would devastate his family), the district court

responded directly to each claim and adequately addressed them.

          We    conclude      that    the     record,       taken     as    a     whole,

indicates that the district court sentenced Myers to a within-

guidelines   sentence    as   a   matter      of   judgment,        not    because     it

believed it was required to do so or because it believed the

guidelines were presumptively correct.               Myers has thus failed to

show a procedural Rita error.             Compare Mendoza-Mendoza, 597 F.3d

at 219-20 (vacating sentence where district court stated that it

“did not agree” with the guidelines, and that it was “obligated”

to   sentence   defendant     within       them    unless     it     could      find   a

compelling reason to divert from them).

          Myers’      argument        that     his     “crack”        sentence         is

substantively unreasonable is likewise without merit.                            In his

brief, Myers argues simply that “any sentence treating crack

[cocaine] more punitively than powder [cocaine]” is inherently

unreasonable    and   unfair.        He   states     that    any    crack       sentence

“based on a ratio other than 1 to 1,” vis a vis powder cocaine

is substantively unreasonable.            However, Myers has not cited any

case or authority that accepts his policy-driven arguments.



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              This   court    has    repeatedly       rejected      claims,    such   as

those    made   by   Myers,       that     the   sentencing        disparity   between

powder   cocaine     and     crack      offenses     violates      either    the   Equal

Protection Clause or a defendant’s due process rights.                              See,

e.g., United States v. Perkins, 108 F.3d 512, 518-19 & n.34

(4th Cir. 1997); United States v. Burgos, 94 F.3d 849, 876-77

(4th Cir. 1996) (en banc).                 To the extent that Myers seeks to

have us reconsider these decisions, a panel of this court cannot

overrule the decision of a prior panel.                      See United States v.

Simms,    441    F.3d      313,      318     (4th     Cir.    2006).          Moreover,

Kimbrough v. United States, the case upon which Myers primarily

relies, did not overturn these precedents.                    See 552 U.S. 85, 107

(2007) (sentencing courts are bound by the disparate statutory

terms    of   imprisonment        for    powder     cocaine     and      cocaine   base,

notwithstanding       district       court’s        discretion      to    depart    from

advisory Sentencing Guidelines ranges based on the disparity).

              Accordingly, we affirm the district court’s judgment.

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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