                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-4130


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

DANIEL W. WIRSING, a/k/a Ace, a/k/a Big Dog,

                  Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:07-cr-00049-JPB-DJJ-1)


Submitted:    April 27, 2009                  Decided:   May 21, 2009


Before MICHAEL, MOTZ, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Kevin D. Mills, MILLS & WAGNER, PLLC, Martinsburg, West
Virginia, for Appellant.      Sharon L. Potter, United States
Attorney, Paul T. Camilletti, Assistant United States Attorney,
Martinsburg, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Daniel Wirsing pled guilty, pursuant to a written plea

agreement, to two counts of a fifteen-count indictment:                               felon

in possession of a firearm, 18 U.S.C. § 922(g) (2006) (Count

Ten), and possession with intent to distribute 16 grams of crack

cocaine,     21     U.S.C.       §§   841(a)(1),          (b)(1)(C)    (2006)       (Count

Fourteen).        Based on a total offense level of 31 and a criminal

history category VI, the advisory guidelines range was 188-235

months imprisonment.             After rejecting Wirsing’s arguments that

his criminal history status overstated the seriousness of his

actual     criminal       history     and    that     his    sentencing       range    was

significantly       above    that     of    his    co-defendant’s       sentence,       the

court sentenced Wirsing to 188 months imprisonment.                                Wirsing

noted a timely appeal.

            We review a sentence, whether inside or outside of the

guidelines    range,       for    abuse     of    discretion.         Gall    v.   United

States, 128 S. Ct. 586, 596 (2007); see also United States v.

Pauley, 511 F.3d 468, 473 (4th Cir. 2007).                             First, we must

“ensure     that     the     district       court     committed        no    significant

procedural error,” such as improperly calculating the Guidelines

range, treating the Guidelines as mandatory, failing to consider

the § 3553(a) factors, relying on clearly erroneous facts, or

failing to adequately explain the chosen sentence.                          Gall, 128 S.

Ct.   at   597.      If    the    district        court    committed    no    procedural

                                             2
error, then we consider the substantive reasonableness of the

sentence imposed, “tak[ing] into account the totality of the

circumstances, including the extent of any variance from the

Guidelines range.”      Id.

           Applying     these    standards,   we   find    that    Wirsing’s

sentence is reasonable.         First, the district court committed no

procedural errors.       Although Wirsing argues that the district

court failed to consider all of his non-frivolous arguments, the

district   court   is   not   required   to   “robotically   tick      through

§ 3553(a)’s every subsection.”           United States v. Johnson, 445

F.3d 339, 345 (4th Cir. 2006).             Additionally, “when a judge

decides simply to apply the Guidelines . . . doing so will not

necessarily   require     lengthy    explanation.”        Rita    v.   United

States, 551 U.S. 338, __, 127 S. Ct. 2456, 2468 (2007).                 Here,

the court stated that it had considered all the factors set

forth in § 3553(a) and noted that Wirsing had two prior drug

felonies, a felony theft conviction, and a firearm in vehicle

conviction.   The court also noted that Wirsing’s present offense

was committed within two years after his release from custody on

a prior felony.    Further, the court found that Wirsing was not a

crack addict, but rather was in the business of selling crack,

as evidenced by his lack of employment since 2002.                The court

also found, in response to Wirsing’s challenge to the crack to

powder cocaine disparity even after the guidelines were amended,

                                     3
that    there       was     a    rational         basis         for    the     disparity         and    that

Wirsing       had     already          been      given          the    benefit        of    the       recent

amendments       to       the     sentencing           guidelines             applicable         to    crack

cocaine offenses.                 The court also rejected Wirsing’s argument

that his first felony drug conviction should not be considered a

conviction       for        purposes        of     the         career     offender         enhancement,

finding        that       Wirsing’s          criminal               history     category         was     VI,

regardless of whether or not the career offender enhancement was

applied.

               With       respect          to    the       substantive          reasonableness            of

Wirsing’s       sentence,             on    appeal,            we    presume        that    a    sentence

imposed       within        the       properly      calculated               guidelines         range     is

reasonable.           Rita, 127 S. Ct. at 2462-69; United States v. Go,

517 F.3d 216, 218 (4th Cir. 2008).                                  Applying the presumption of

reasonableness to Wirsing’s within-guidelines sentence, we find

no    abuse     of    discretion            by    the      district           court’s       decision      to

impose     a    188-month             sentence.                Therefore,           the    sentence       is

reasonable.

               Finally, Wirsing argues that the application of the

career offender enhancement violates the holding of Apprendi v.

New    Jersey,        530    U.S.      466       (2005),            because    the    district         court

relied    on     facts          not    found      by       a    jury.          We    have       explicitly

rejected this argument.                    See United States v. Collins, 412 F.3d

515, 521-23 (4th Cir. 2005).

                                                       4
           Accordingly,    we   affirm   Wirsing’s    sentence.      We

dispense   with   oral    argument   because   the   facts   and   legal

contentions are adequately addressed in the materials before the

court and argument would not aid the decisional process.

                                                               AFFIRMED




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