                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-4647


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

RONALD ARTHUR HARRIS,

                  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. (3:06-cr-00113-RJC)


Submitted:    June 9, 2009                  Decided:   July 20, 2009


Before TRAXLER, Chief Judge, and MICHAEL and DUNCAN, Circuit
Judges.


Affirmed by unpublished per curiam opinion.


Trevor M. Fuller, FULLER & BARNES, 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Unpublished opinions are not binding precedent in this circuit.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:

            Ronald     Arthur       Harris         appeals       his    sentence      after

pleading guilty to possession with intent to distribute cocaine,

cocaine base, and marijuana, and using and carrying a firearm

during and in relation to a drug trafficking crime.                                Harris’s

counsel filed a brief pursuant to Anders v. California, 386 U.S.

738    (1967).      Counsel      raised       the       issue    of    whether     Harris’s

sentence was reasonable and whether the district court erred in

not    departing     further     based    on       the    Government’s         substantial

assistance       motion     under      U.S.       Sentencing          Guidelines     Manual

§ 5K1.1 (2005). *      Harris was informed of his right to file a pro

se    supplemental    brief      but   has        not   done     so.     The   Government

declined to file a reply brief.               Finding no error, we affirm.

            This court will affirm the district court’s imposition

of sentence as long as the sentence is within the statutorily

prescribed range and reasonable.                    United States v. Hughes, 401

F.3d 540 (4th Cir. 2005).                 When determining a sentence, the

district     court        must    calculate             the     appropriate        advisory

Guidelines range and consider it in conjunction with the factors

set forth in 18 U.S.C. § 3553(a) (2006).                        Gall v. United States,

552 U.S. 38,          , 128 S. Ct. 586, 596 (2007).                     Appellate review
       *
       This case was placed in abeyance for United States v.
Antonio, 311 F. App’x 679, 2009 WL 430426 (4th Cir. 2009) (No.
07-4791).   The decision in Antonio does not affect the outcome
of Harris’s appeal.



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of a district court’s imposition of a sentence, “whether inside,

just outside, or significantly outside the Guidelines range,” is

for abuse of discretion.                  128 S. Ct. at 591.             Sentences within

the applicable Guidelines range may be presumed by the appellate

court to be reasonable.                United States v. Pauley, 511 F.3d 468,

473 (4th Cir. 2007).

               The district court followed the necessary procedural

steps     in       sentencing         Harris,         appropriately            treating       the

sentencing         guidelines        as    advisory,       properly       calculating       and

considering        the    applicable         Guidelines      range,      taking      testimony

from    Harris’s         relatives,        considering       the    extent      of    Harris’s

substantial           assistance,             performing           an      “individualized

assessment” of the § 3553(a) factors to the facts of the case,

and stating in open court the reasons for the sentence.                                  United

States    v.    Carter,        564    F.3d    325,     328   (4th       Cir.    2009).      (JA

74-77).

               In addition, although Harris states that the district

court should have granted a larger downward departure from the

Guidelines range pursuant to § 5K1.1, a district court’s failure

to     grant   a    downward         departure        is   not     reviewable        unless    a

district court was under the mistaken impression that it lacked

the authority to depart.                   United States v. Matthews, 209 F.3d

338, 352 (4th Cir. 2000); see also United States v. Cooper, 437

F.3d    324,    333      (3d   Cir.       2006)   (collecting       cases       declining     to

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review a district court’s decision not to depart, even after

Booker).       Here, the court granted the substantial assistance

motion and the extent of departure is challenged.                        There is no

evidence that the district court misunderstood its authority to

depart.        Thus,    Harris’s      challenge     to     the     district   court’s

failure to depart further is not cognizable on appeal.

             We therefore affirm the judgment.                   In accordance with

Anders, we have reviewed the entire record in this case and have

found no meritorious issues for appeal.                       We therefore affirm

Harris’s   conviction         and   sentence.       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 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     the   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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