                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4656


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

ABRAHAM HERNANDEZ TORRES, a/k/a Beto, a/k/a Chavez,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., Chief District Judge. (3:07-cr-00233-RJC-2)


Submitted:    December 11, 2008            Decided:   December 17, 2008


Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


John J. Cacheris, DOZIER, MILLER, POLLARD & MURPHY, LLP,
Charlotte, 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Unpublished opinions are not binding precedent in this circuit.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:

                 Abraham Hernandez Torres pleaded guilty, pursuant to a

plea       agreement,    to    one    count   of    conspiracy     to    possess    with

intent      to    distribute     heroin     and    cocaine,   in   violation       of    21

U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (2006).                    The district court

sentenced him to 121 months of imprisonment, and Torres timely

appealed.

                 On appeal, counsel filed an Anders 1 brief, in which he

states there are no meritorious issues for appeal, but questions

whether       Torres    waived       his   right   to   appeal,    and    whether       the

district court erred in denying Torres’ motion for a downward

variance sentence.            The Government declined to file a brief.                   We

affirm.

                 Because the Government declined to argue that Torres’

plea agreement appeal waiver bars his appeal, we do not consider

sua sponte the effect of the waiver.                     United States v. Blick,

408 F.3d 162, 168 (4th Cir. 2005).

                 We review a sentence imposed by the district court for

procedural        and   substantive        reasonableness     under      an   abuse-of-

discretion standard.           Gall v. United States, 128 S. Ct. 586, 597

(2007).       The court considers the totality of the circumstances

in assessing the substantive reasonableness of a sentence.                              Id.

       1
           Anders v. California, 386 U.S. 738 (1967).



                                              2
This court presumes that a sentence imposed within the properly

calculated Guidelines range is reasonable.                      United States v. Go,

517 F.3d 216, 218 (4th Cir. 2008); see Rita v. United States,

127   S.    Ct.     2456,     2462-69    (2007)        (upholding    presumption       of

reasonableness for within-Guidelines sentence).                          In considering

the district court’s application of the Guidelines, this court

reviews factual findings for clear error and legal conclusions

de novo.       United States v. Allen, 446 F.3d 522, 527 (4th Cir.

2006).

             The       district     court        correctly       calculated       Torres’

Guidelines 2 range and imposed a sentence within that range and

within the statutory maximum.                    The 121-month sentence is one

month     greater      than   the    applicable        statutory    minimum       of   120

months.      See 21 U.S.C. § 841(b)(1)(A).                      In the absence of a

Government motion for a departure, the district court lacked

authority      to      sentence     Torres       below    the    statutory       minimum.

United States v. Robinson, 404 F.3d 850, 862 (4th Cir. 2005). 3

Our   review      of   the    record    leads     us     to   conclude    that    Torres’

sentence is reasonable.



      2
          U.S. Sentencing Guidelines Manual (2007).
      3
       Counsel suggests that the court could revisit the decision
in Robinson. A panel of this court may not, however, overrule a
prior published decision of the court.      See United States v.
Ruhe, 191 F.3d 376, 388 (4th Cir. 1999).



                                             3
             In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal.

We   have   reviewed       the    arguments          asserted       in     Torres’         pro   se

supplemental       brief    and    find    them          to   be    without         merit.        We

therefore affirm Torres’ conviction and sentence.                                    This court

requires that counsel inform Torres, in writing, of the right to

petition    the    Supreme       Court    of       the    United      States        for   further

review.      If    Torres       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 Torres.

             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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