                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-4274


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

COOLIDGE KENTAY USSERY,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (1:08-cr-00059-LHT-5)


Submitted:   March 30, 2010                   Decided:   May 7, 2010


Before NIEMEYER, MICHAEL, 1 and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James S. Weidner, Jr., LAW OFFICES OF JAMES S. WEIDNER, JR.,
Charlotte, North Carolina, for Appellant. Amy E. Ray, OFFICE OF
THE UNITED STATES ATTORNEY, Asheville, North Carolina, for
Appellee.



     1
       Judge Michael was a member of the original panel but did
not participate in this decision.    This opinion is filed by a
quorum of the panel pursuant to 28 U.S.C. § 46(d).
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

               Coolidge Kentay Ussery pled guilty, pursuant to a plea

agreement,       to        conspiracy      to       distribute     cocaine        base,    in

violation      of     21    U.S.C.    §§   841,       846    (2006).       Though    Ussery

originally faced a mandatory sentence of life imprisonment due

to his prior felony drug convictions, the district court granted

the     Government’s         substantial        assistance         motion    under        U.S.

Sentencing       Guidelines          Manual     (“USSG”)       §    5K1.1    (2008)       and

sentenced Ussery to 262 months’ imprisonment, the low end of the

otherwise applicable guidelines range.                       After granting a Fed. R.

Crim.     P.   35   motion      for    substantial          assistance,     the    district

court reduced Ussery’s sentence to 228 months.

               Appellate       counsel      has      filed     a   brief    pursuant        to

Anders v. California, 386 U.S. 738 (1967), questioning whether

Ussery’s sentence was substantively unreasonable, but contending

there are no meritorious issues on appeal.                          Ussery was advised

of his right to file a pro se supplemental brief and did not do

so.       The Government elected not to file a brief and does not

seek to enforce the plea agreement’s appeal waiver. 2                        We affirm.




      2
       Ussery waived his right to appeal his sentence in the plea
agreement. Because the Government fails to assert the waiver as
a bar to the appeal, however, we may consider the issue raised
in the Anders brief and conduct an Anders review.      See United
States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007).



                                                3
              “Regardless of whether the sentence imposed is inside

or    outside      the   [g]uidelines          range,    the     appellate      court    must

review      the     sentence      under    an       abuse-of-discretion         standard.”

Gall v. United States, 552 U.S. 38, 51 (2007).                            We are charged

with   reviewing         sentences       for    both    procedural       and    substantive

reasonableness.          Id.

              In     determining        procedural        reasonableness,        we     first

assess      whether      the     district       court     properly       calculated       the

defendant’s advisory guidelines range.                     Gall, 552 U.S. at 49-50.

We then determine whether the district court failed to consider

the    18    U.S.C.      §     3553(a)    (2006)        factors    and    any    arguments

presented by the parties, treated the guidelines as mandatory,

selected     a     sentence      based     on       “clearly    erroneous       facts,”    or

failed to sufficiently explain the selected sentence.                                 Id. at

51; United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).

Finally,      we     review      the      substantive          reasonableness      of     the

sentence,          “taking       into     account         the     ‘totality       of      the

circumstances, including the extent of any variance from the

[g]uidelines range.’”                Pauley, 511 F.3d at 473 (quoting Gall,

552 U.S. at 51).

              Here, though it correctly calculated Ussery’s advisory

guidelines         range,      the    district        court     failed    to     adequately

explain     Ussery’s         sentence.         Though    not    raised    by    Ussery,    we

recently held, in United States v. Carter, 564 F.3d 325 (4th

                                                4
Cir.    2009),     that     a   district            court    must      conduct        an

“individualized     assessment”      of       the   particular    facts   of     every

sentence, whether the court imposes a sentence above, below, or

within the guidelines range.              Id. at 330.        Here, the district

court summarized its reasons for Ussery’s sentence as follows:

       Pursuant to the Sentencing Reform Act of 1984 and
       United States v. Booker, it is the judgment of the
       Court, having considered the factors noted in 18
       U.S.C. § 3553(a), that the defendant, Coolidge Kentay
       Ussery, is hereby committed to the custody of the U.S.
       Bureau of Prisons to be imprisoned for a term of 262
       months.

The    district    court    failed    to       provide      any   reasons      why     a

guidelines sentence was appropriate for Ussery or why it chose

to sentence him at the low end of the advisory guidelines range.

Therefore, it is clear that the district court failed to provide

on the record the individualized assessment required by Carter.

            However, Ussery did not object to the adequacy of the

district court’s explanation in the district court.                         Where a

defendant   does    not    object    to   a     district     court’s    failure       to

explain an imposed sentence, our review is for plain error.                          See

United States v. Lynn, ___ F.3d ___, ___, 2010 WL 322176, at *3

(4th Cir. 2010).     Under plain error review,

       [A]n appellate court may correct an error not brought
       to the attention of the trial court if (1) there is an
       error (2) that is plain and (3) that affects
       substantial rights. If all three of these conditions
       are met, an appellate court may then exercise its
       discretion to notice a forfeited error, but only if
       (4)   the  error   seriously  affects   the  fairness,

                                          5
       integrity,   or            public           reputation         of      judicial
       proceedings.

United    States      v.      Carr,    303     F.3d    539,     543    (4th     Cir.     2002)

(internal quotation marks, citations, and alterations omitted).

In the sentencing context, an error affects substantial rights

if the defendant can show that the sentence imposed “was longer

than    that    to   which      he    would     otherwise       be    subject.”        United

States    v.     Washington,          404    F.3d     834,    849      (4th    Cir.      2005)

(internal quotation marks and citation omitted).

               Though    the    district       court    committed          error,   and    the

error was plain, we find that the error did not affect Ussery’s

substantial rights.            Ussery was sentenced at the low end of the

guideline        range        after     the        district     court         granted     the

Government’s U.S. Sentencing Guidelines Manual § 5K1.1 (2008)

motion based on Ussery’s substantial assistance.                             This sentence

was    recommended       by    both    the     Government       and    Ussery’s       counsel

during    their      arguments        during    sentencing.           Finally,      Ussery’s

sentence was further reduced following the Government’s Fed. R.

Crim. P. 35 motion.             Because Ussery cannot demonstrate that he

would have received a lesser sentence had the district court

adequately explained its reasoning, we find that the district

court’s        inadequate       explanation           did     not      affect       Ussery’s

substantial rights.




                                               6
              Additionally,     we    find     that   Ussery’s         sentence    is

substantively reasonable.            Ussery originally faced a mandatory

term    of    life   imprisonment.       However,     after      two    substantial

assistance motions by the Government, Ussery received a sentence

of 228 months’ imprisonment — almost three years less than the

recommended      guidelines     range.       Therefore,     it    is     clear    his

sentence is reasonable.

              In accordance with Anders, we have examined the entire

record, including the integrity of the Rule 11 hearing, and have

found no meritorious issues for appeal.               Accordingly, we affirm

the district court’s judgment.           This court requires that counsel

inform Ussery, in writing, of the right to petition the Supreme

Court    of    the   United    States    for    further     review.      If    Ussery

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 Ussery.                        We

dispense      with   oral     argument   because      the     facts      and     legal

contentions are adequately expressed in the materials before the

court and argument would not aid the decisional process.



                                                                              AFFIRMED




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