                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-5160


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

DOMINIQUE RODERICK MILLER,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
District Judge. (5:08-cr-00277-D-1)


Submitted:   November 30, 2010             Decided:   January 7, 2011


Before NIEMEYER, MOTZ, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Richard Croutharmel, Raleigh, 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Unpublished opinions are not binding precedent in this circuit.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:

           Dominique Roderick Miller appeals the district court’s

judgment imposing a sentence of 120 months in prison and three

years of supervised release after he pled guilty to being a

convicted felon in possession of firearm, in violation of 18

U.S.C. §§ 922(g)(1), 924 (2006).            Miller’s attorney has filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967),

asserting, in his opinion, there are no meritorious grounds for

appeal but raising the issues of whether Miller’s guilty plea

was knowing and voluntary; whether his trial attorneys rendered

ineffective     assistance;    whether      the    district    court    correctly

calculated      his   guideline    range;    whether    the       district    court

applied the correct standard of proof in finding facts used to

enhance his sentence; whether prosecutorial misconduct occurred;

whether   the    district   court   erred    in    denying    a    reduction    for

acceptance of responsibility; and whether Miller’s sentence is

unreasonable     as   disparately    high     in    violation      of   18   U.S.C.

§ 3553(a)(6) (2006).        Miller was notified of his right to file a

pro se supplemental brief but has not done so.                We affirm.

           Appellate     counsel    first     questions       whether    Miller’s

guilty plea was knowing and voluntary.              For a guilty plea to be

valid, “[i]t must reflect ‘a voluntary and intelligent choice

among the alternative courses of action open to the defendant.’”

United States v. Moussaoui, 591 F.3d 263, 278 (4th Cir. 2010)

                                       2
(quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)).                     The

guilty plea colloquy conducted by the district court pursuant to

Fed. R. Crim. P. 11 is the avenue by which the court establishes

that the defendant knowingly and voluntarily entered his guilty

plea.     See United States v. Wood, 378 F.3d 342, 349 (4th Cir.

2004).      Because Miller did not move in the district court to

withdraw his guilty plea, we review the Rule 11 colloquy for

plain error.      See United States v. Martinez, 277 F.3d 517, 525

(4th Cir. 2002).       Thus, it is Miller’s burden to show (1) error;

(2) that is plain; (3) affecting his substantial rights; and (4)

we should exercise our discretion to notice the error.                      Id. at

529.     We have reviewed the record and conclude that Miller has

shown no plain error affecting his substantial rights, and the

district court’s guilty plea colloquy in compliance with Rule 11

ensured that Miller’s plea was knowing and voluntary.

             Appellate     counsel      next    questions       whether     Miller

received ineffective assistance of counsel, but he concludes the

record does not reveal any.          As acknowledged by counsel, we will

only    address   this    issue   on     direct   appeal    if     the    lawyer’s

ineffectiveness     conclusively        appears   from    the     record.       See

United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).

We   have   reviewed     the   record    and   conclude    that    it    does   not

conclusively support this claim.             Counsel also questions whether

there was any prosecutorial misconduct, but he concludes Miller

                                         3
has no argument for prosecutorial misconduct.                     We have reviewed

the record and agree that this claim is likewise without merit.

            Appellate counsel’s remaining issues on appeal relate

to Miller’s sentence.          We review a sentence under a deferential

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

38, 51 (2007).        The first step in this review requires us to

ensure     that    the     district      court        committed    no   significant

procedural error, such as improperly calculating the guideline

range,    failing    to     consider     the     18    U.S.C.     § 3553(a)    (2006)

factors, or failing to adequately explain the sentence.                        United

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

consider the substantive reasonableness of the sentence imposed,

taking into account the totality of the circumstances.                          Gall,

552 U.S. at 51.          On appeal, we presume that a sentence within a

properly     calculated       guideline      range     is   reasonable.        United

States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).

            We    have    reviewed     the     record    and    conclude   that   the

district court did not err or abuse its discretion in sentencing

Miller, and his sentence is both procedurally and substantively

reasonable.       Because Miller used the firearm in connection with

drug trafficking, his base offense level was determined based on

the drug quantity for which he was responsible pursuant to U.S.

Sentencing       Guidelines     Manual    §§ 2D1.1,         2K2.1(c)(1)(A),     2X1.1

(2008).    The probation officer determined he was responsible for

                                          4
5.7 grams of cocaine hydrochloride and 210 grams of cocaine base

based on his statement to police that he bought 7 to 14 grams of

cocaine base every other day over a two-month period.                          This

resulted in a final base offense level of thirty-four.                    After a

three-level reduction for acceptance of responsibility, and with

his criminal history category II, Miller’s guideline range would

have been 121 to 151 months.            However, because of the statutory

maximum, his guideline range became 120 months.

            Miller     objected   to    the    drug   quantity,     denying     his

statements to police and contending he was only responsible for

the 5.7 grams of cocaine hydrochloride and .9 grams of cocaine

base found in the search of his home.                    He also requested a

variance    sentence     below    the    guideline       range    based   on   his

attempts to provide information to the Government, acceptance of

responsibility, character letters from family and friends, and

the   impact    that    incarceration         would   have   on     his   family.

Finally, Miller argued that the Government was required to prove

the drug quantity beyond a reasonable doubt.

            At sentencing, the district court correctly ruled that

a sentencing judge may find facts relevant in determining an

advisory guideline range by a preponderance of the evidence.

See   United   States    v.   Benkahla,     530   F.3d    300,    312   (4th   Cir.

2008).     The Government presented evidence of Miller’s statements

to law enforcement officers, and Miller testified denying those

                                        5
statements.         The district court credited the testimony of the

officers, discredited Miller’s testimony, and found that he had

made statements that he purchased 7 to 14 grams of cocaine base

every other day for over a two-month period.                      The district court

overruled     Miller’s      objection    as    to    drug    quantity;       found   his

testimony at the hearing was untruthful and that he had “utterly

failed   to    fully       accept    responsibility,        as    reflected    in    his

perjurious     testimony       here”;    and    denied      him    a   reduction     for

acceptance of responsibility.              Accordingly, the district court

determined     Miller’s      total    offense    level      was    thirty-four,      and

with a criminal history category II, his advisory range would be

168 to 210 months.           However, due to the statutory maximum, the

guideline range became 120 months.                   In sentencing him to 120

months, the district court noted it had considered all of the

statutory sentencing factors.             The court took into account the

variance request but did not believe a variance was appropriate

in   light     of    the    serious     nature      of   the      offense,    Miller’s

testimony at the hearing, and the totality of the record.

              As to the remaining issues on appeal, we find no clear

error in the district court’s decision denying Miller a sentence

reduction for acceptance of responsibility, because he falsely

denied his previous statements regarding drug quantity.                              See

USSG § 3E1.1 cmt. n.1 (2008); United States v. Dugger, 485 F.3d

236, 239 (4th Cir. 2007).             Moreover, based on its drug quantity

                                          6
findings,       the    district     court       properly       calculated   Miller’s

guideline range.            We review counsel’s argument that Miller’s

sentence is possibly disparately high in violation of 18 U.S.C.

§ 3553(a)(6) for plain error, because Miller did not make this

argument in the district court.                 See United States v. Hargrove,

___ F.3d ___, 2010 WL 4676980, *12 (4th Cir. 2010) (plain error

review applies to specific allegation of error in substantive

reasonableness analysis); see also United States v. Lynn, 592

F.3d 572, 579 n.4 (4th Cir. 2010) (lodging a specific claim of

error before the district court, e.g., relying on certain § 3553

factors,    does      not   preserve    for     appeal     a   different    claim   of

error, e.g., relying on different § 3553 factors).                      We conclude

Miller has shown no plain error affecting substantial rights.

            In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.     We     therefore      affirm    the    district      court’s    judgment.

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.



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            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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