                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-4037


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

MICHAEL EUGENE GOODWIN, a/k/a D.C., a/k/a D.C. Mike,

                Defendant – Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Malcolm J. Howard,
Senior District Judge. (7:09-cr-00065-H-1)


Submitted:   August 9, 2011                 Decided:   September 6, 2011


Before WILKINSON, KING, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Richard L. Cannon, III, CANNON LAW OFFICES, PLLC, Greenville,
North Carolina, for Appellant.       Jennifer P. May-Parker,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Michael Eugene Goodwin pled guilty in accordance with

a written plea agreement to possession with intent to distribute

heroin, 21 U.S.C.           § 841(a) (2006), and was sentenced to 168

months in prison.           Goodwin now appeals.           His attorney has filed

a brief in accordance with Anders v. California, 386 U.S. 738

(1967), challenging the sentence but stating that there are no

meritorious issues for review.                 Goodwin was advised of his right

to file a pro se supplemental brief but has not filed such a

brief.    We affirm.



                                              I

            According        to       the   presentence       investigation    report

(PSR), Goodwin was responsible for 2.4 grams of heroin and 450

grams of cocaine base, for a marijuana equivalent of 9,002.4

kilograms.    His base offense level was 34.                   See U.S. Sentencing

Guidelines Manual § 2D1.1(c)(3) (2008).                    This was reduced by two

levels    pursuant     to    USSG      § 2D1.1      cmt.   n.10(D)(i).       His   base

offense level under the Drug Quantity Table accordingly was 32.

            Goodwin     was       a   career      offender.   See    USSG   § 4B1.1(a)

(2008).    Because the maximum penalty to which he was subject was

twenty years in prison, see 21 U.S.C. § 841(b)(1)(C) (2006), his

offense   level   as    a     career        offender   also    was   32.     See   USSG

§ 4B1.1(b)(C).

                                              2
              Three levels were subtracted based on acceptance of

responsibility.           See    USSG    § 3E1.1.             Goodwin’s        total      offense

level was 29.         He had twenty criminal history points, placing

him in criminal history category VI.                       As a career offender, his

criminal history category also was VI.                             See USSG § 4B1.1(b).

Goodwin’s advisory Guidelines range was 151-188 months.

              Goodwin objected to the quantity of drugs considered

to    be   relevant    conduct—specifically,                  to    434    grams       of    crack

cocaine     attributed      to    him     by       Shawn      Powell.          After      hearing

testimony, the district court found by a preponderance of the

evidence that Goodwin was accountable for the amount of drugs

set   forth    in   the    PSR,    including            the   434    grams      of     crack    in

question.

              The court sentenced Goodwin to 168 months in prison.

In    imposing      sentence,      the     court         considered        the       18     U.S.C.

§ 3553(a) (2006) factors.               The court stated that it had selected

a sentence in the middle of the Guidelines range because of

Goodwin’s     lengthy      criminal       record,          history        of   assault,        and

disregard for prior periods of supervision.



                                                   II

              We review a sentence for reasonableness, applying an

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

38, 51 (2007).        This review requires consideration of both the

                                               3
procedural and substantive reasonableness of the sentence.                               Id.;

see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).

After     determining          whether        the       district       court        correctly

calculated the defendant’s advisory Guidelines range, we must

decide    whether     the      court    considered         the    §    3553(a)      factors,

analyzed     the      arguments          presented         by     the      parties,      and

sufficiently explained the selected sentence.                          Lynn, 592 F.3d at

575-76; see United States v. Carter, 564 F.3d 325, 330 (4th Cir.

2009).     Properly preserved claims are subject to harmless error

review.     Lynn, 592 F.3d at 576.                      If the sentence is free of

significant    procedural         error,      we    then      review    the    substantive

reasonableness of the sentence.                     Id. at 575; United States v.

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

            Goodwin first claims that he was improperly treated as

a career offender.             Our review of the record strongly suggests

that    Goodwin    was     a    career       offender.          See    USSG    § 4B1.1(a).

However, we need not conclusively determine this issue because

any error was harmless.               Whether calculated based on his career

offender    status    or       under   the     Drug      Quantity      Table,       Goodwin’s

total    offense    level       was    29.        Further,       his   criminal      history

category as a career offender was VI, and he had twenty criminal

history     points,      also     placing         him    in     category      VI.       Thus,

Goodwin’s     advisory          Guidelines          range       was     151-188        months



                                              4
regardless of whether the range was calculated based on career

offender status or the Drug Quantity Table.

            Goodwin also claims that crack cocaine was improperly

treated as relevant conduct because he was charged only with a

heroin offense.      This claim lacks merit.            It is well established

that   a    sentencing      court     may,     consistent          with    the      Sixth

Amendment,     consider      uncharged       conduct        in     determining         the

sentence,     as    long    as   the     conduct       is        established      by     a

preponderance of the evidence.               United States v. Grubbs, 585

F.3d 793, 799 (4th Cir. 2009), cert. denied, 130 S. Ct. 1923

(2010).     Our review of the record supports the district court’s

treating     both   crack     and     heroin      as    relevant          conduct      for

Guidelines purposes.

            Finally,       Goodwin      argues         that        the      Government

erroneously failed to move for a downward departure based on his

substantial assistance.          The decision whether to file a USSG

§ 5K1.1 motion lies solely within the Government’s discretion.

United States v. Butler, 272 F.3d 683, 686 (4th Cir. 2001).

Thus, unless the Government has obligated itself in the plea

agreement to make such a motion, its refusal to do so is not

reviewable     absent      evidence    of    an    unconstitutional              motive.

Wade v. United States, 504 U.S. 181, 185-87 (1992); Butler, 272

F.3d at 686.



                                         5
           Here, nothing in Goodwin’s plea agreement obligated

the   United   States   to   make   a   § 5K1.1      motion.   The   agreement

provided in pertinent part:

           That [the United States] will make known to
           the Court at sentencing the full extent of
           the Defendant’s cooperation, but the United
           States   is  not   promising   to  move   for
           departure pursuant to USSG § 5K1.1, 18
           U.S.C. § 3553(e), or Fed. R. Crim. P. 35.

There is no evidence that the failure to move for a departure

resulted from an unconstitutional motive.

           We conclude that Goodwin’s sentence is procedurally

and substantively reasonable.           See Gall v. United States, 552

U.S. at 51.      The court properly calculated Goodwin’s advisory

Guidelines range, considered the pertinent § 3553(a) factors,

considered the parties’ arguments,                and sufficiently explained

the sentence.     See id.; United States v. Evans, 526 F.3d 155,

161 (4th Cir. 2008).



                                            III

           After reviewing the entire record in accordance with

Anders, we find that there are no meritorious issues for appeal.

We therefore affirm.         This court requires that counsel inform

his client, in writing, of his right to petition the Supreme

Court of the United States for further review.                 If the client

requests that a petition be filed, but counsel believes that


                                        6
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 of the motion was served on his

client.     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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