                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-4868


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

OLIVER DERWIN THOMAS,

                  Defendant - Appellant.



                              No. 07-4989


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

EDWIN LERON HAMMOND, a/k/a Edwin Leon Hammond,

                  Defendant - Appellant.



Appeals from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Sr.;
N. Carlton Tilley, Jr., Senior District Judges. (1:07-cr-00042-
WLO)


Submitted:    September 18, 2009            Decided:   October 9, 2009


Before NIEMEYER, GREGORY, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.


Christopher R. Clifton, GRACE, TISDALE & CLIFTON, P.A., Winston-
Salem, North Carolina; Louis C. Allen, III, Federal Public
Defender, Eric D. Placke, Assistant Federal Public Defender,
Greensboro, North Carolina, for Appellants. Anna Mills Wagoner,
United States Attorney, David P. Folmar, Jr., Assistant United
States Attorney, Clifford R. Lamar, II, Third Year Law Student,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

               Oliver       Derwin     Thomas        and    Edwin     Leron       Hammond    pled

guilty    to    distribution          of    cocaine        base,     in    violation        of    21

U.S.C. § 841(a)(1), (b)(1)(B) (2006).                           They now appeal their

respective 280-month and 262-month sentences, arguing that the

sentences       are        unreasonable.              The      two        cases     have     been

consolidated on appeal.              Finding no error, we affirm.

               We review a sentence for reasonableness, applying an

abuse of discretion standard.                    Gall v. United States, 552 U.S.

38,       , 128 S. Ct. 586, 597 (2007); see also United States v.

Layton, 564 F.3d 330, 335 (4th Cir. 2009).                                 We conclude that

Thomas’     and       Hammond’s       sentences        are     both        procedurally          and

substantively             reasonable.            The        district        court     properly

calculated          the    guidelines       range,         treated    the     guidelines          as

advisory,      and        considered       the   applicable          18    U.S.C.    § 3553(a)

(2006) factors.            See United States v. Pauley, 511 F.3d 468, 473

(4th Cir. 2007).             Moreover, the district courts’ sentences were

based on their “individualized assessment” of the facts of the

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

2009).    Last, Thomas’ and Hammond’s within-guidelines sentences

are presumptively reasonable on appeal.                             United States v. Go,

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

               In    rebutting       the    presumption        of     reasonableness,            see

United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006)

                                                 3
(stating       presumption       may   be    rebutted      by    showing      sentence     is

unreasonable        when       measured     against       the    § 3553(a)       factors),

Thomas    argues     his       sentence     is    unreasonable        in     light   of   the

Supreme        Court’s    subsequent        decision      in     Kimbrough      v.   United

States, 552 U.S. 85,                 , 128 S. Ct. 558 (2007), and Amendment

706 to the federal sentencing guidelines, which lowered the base

offense level for crack offenses effective November 1, 2007.

Thomas did not object to his presentence report based on the

crack     cocaine/powder             disparity.           Applying         Amendment      706

retroactively       offers       Thomas     no    relief.         Because      Thomas     was

designated a career offender, his base offense level of thirty-

seven was determined by the statutory maximum sentence of life

imprisonment        applicable         to    his     offense          under    21    U.S.C.

§ 841(b)(1)(A), not the drug quantity found attributable to him.

See     U.S.     Sentencing      Guidelines        Manual       § 4B1.1(b)(A)        (2006).

Thus,    although        the    base    offense     level       corresponding        to   the

determined drug quantity would be lower as a result of Amendment

706,    the     amendment       is    ultimately     of     no    consequence        because

calculation of Thomas’ offense level was driven by the career

offender designation.            See USSG § 2D1.1(c)(8).

                In Kimbrough, the Supreme Court held that “it would

not be an abuse of discretion for a district court to conclude

when    sentencing       a     particular    defendant         that    the    crack/powder

disparity yields a sentence ‘greater than necessary’ to achieve

                                              4
§ 3553(a)’s purposes, even in a mine-run case.”                               128 S. Ct. at

575.        Because Thomas did not argue below that he should be

sentenced below the advisory guidelines range based upon the

crack/powder cocaine disparity in the guidelines, review is for

plain error.       See United States v. Branch, 537 F.3d 328, 343

(4th Cir. 2008), cert. denied, 129 S. Ct. 943 (2009).                                 Assuming

the    court’s    failure      to     consider           the    crack/powder         disparity

constitutes error that was plain, it must still be established

that the error affected the defendant’s substantial rights.                                See

id.      This court previously has “concluded that the error of

sentencing a defendant under a mandatory guidelines regime is

neither      presumptively         prejudicial            nor    structural,”          thereby

requiring a showing of “actual prejudice.”                              United States v.

White, 405 F.3d 208, 223 (4th Cir. 2005).                            Thus, the burden is

on    the    defendant   to    establish           that    the       error   “affected     the

district court’s selection of the sentence imposed.”                            Id.

              Here, the record is entirely silent on this issue and

the record does not reveal a nonspeculative basis for concluding

that the district court would have imposed a shorter sentence

had it known it possessed the discretion to do so.                                     In any

event,      Kimbrough    is   of    no    assistance            to   Thomas    because      his

ultimate      guidelines      range      was       not    determined         based    on   drug

quantity but on his status as a career offender.                                 See United

States v. Ogman, 535 F.3d 108, 109 (2d Cir. 2008) (clarifying

                                               5
that when “a district court sentences a defendant pursuant to a

Guidelines        range    that    results             from    his     status    as    a    career

offender,        and     without       reliance          upon     the     Guidelines’           drug

quantity table and the crack powder ratio that it incorporates,

the sentence does not present the type of error for which remand

. . . is appropriate”); United States v. Jiminez, 512 F.3d 1, 8-

9   (1st    Cir.       2007)   (“As     we    have       explained,        the   crack/powder

dichotomy is irrelevant to the career offender sentence actually

imposed      in     this       case.           Consequently,             the     decision        in

Kimbrough . . .           is      of     only           academic         interest      here.”).

Therefore, Thomas cannot demonstrate that the district court’s

failure     to     consider      the     crack/powder            disparity       affected        his

substantial rights.

              Thomas      also     argues          his        sentence    is     substantively

unreasonable under § 3553(a) because his co-defendant, Hammond,

received a shorter sentence by eighteen months.                                  He maintains

that,      unlike      Hammond,     he       was       merely     a    facilitator         in   the

offense.          He     further       argues          that     the     court    should         have

considered his difficult childhood and disadvantaged life.                                      Both

Thomas and Hammond pled guilty to the same offense and both were

sentenced as career offenders.                     The sentence differential can be

easily understood given that Thomas and Hammond were sentenced

by different judges and Hammond attempted to cooperate with the

Government.             Furthermore,          the        court        listened    to       defense

                                                   6
counsel’s    argument       concerning      Thomas’     background      and,    in   its

discretion,       the    district       court   considered       more    significant

Thomas’ recidivism.             The district court therefore did not abuse

its discretion in imposing the chosen sentence.

             On appeal, Hammond maintains his 262-month sentence is

unreasonable because it is greater than necessary to accomplish

the goals of § 3553(a) and that the court did not have the

benefit of the Gall decision in fashioning his sentence.                               In

Hammond’s     case,       the     district      court    treated       the     properly

calculated     guidelines         as    advisory,     considered       the     relevant

§ 3553(a) factors, and heard argument from the parties as well

as   a   statement       from    Hammond.       The   court    clearly       took    into

consideration Hammond’s possible cooperation with the Government

and his lengthy criminal history in determining that a sentence

at   the    low    end     of    the    guidelines      range,    as    specifically

requested by Hammond, was appropriate.                   Hammond has simply not

rebutted     the     appellate         presumption      that     his    sentence       is

reasonable.        Accordingly, the district court did not abuse its

discretion in imposing a 262-month sentence.

            We therefore affirm Thomas’ and Hammond’s sentences.

We further deny Thomas’ motion to proceed pro se/appoint new

counsel.     We dispense with oral argument because the facts and

legal    contentions       are    adequately     presented       in    the   materials



                                            7
before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                    AFFIRMED




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