                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4951


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

TONY L. PURYEAR,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:08-cr-00077-HEH-1)


Submitted:    June 11, 2009                   Decided:   July 2, 2009


Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Robert L. Flax, Richmond, Virginia, for Appellant. Dana J.
Boente, Acting United States Attorney, Peter S. Duffey,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Tony L. Puryear appeals his convictions and 108 month

sentence for distribution of crack cocaine, in violation of 21

U.S.C. § 841(a)(1), (b)(1)(B)(iii), (b)(1)(C) (2006).                              Puryear’s

counseled      appellate           brief        raises     ten     claims:         Puryear’s

convictions violated Apprendi v. New Jersey, 530 U.S. 466 (2000)

(Claim 1); his convictions violated the Commerce Clause (Claim

2);     the   judge        erred     in        excluding      evidence     of     the   prior

conviction of a trial witness, Alice Chambers (Claim 3); the

district court should have excluded evidence of purchases made

by Chambers’s friend, Earl (Claim 4); the court erred in denying

Puryear’s motions for judgment of acquittal (Claim 5) and for a

mistrial (Claim 6); the evidence was insufficient to support

Puryear’s conviction (Claim 7); Puryear’s conviction should have

been    reversed      as    he     was     a    victim     of    entrapment      (Claim     8);

Puryear’s house should not have been forfeited (Claim 9); and

Puryear’s sentence is unreasonable (Claim 10).

              While    Puryear’s           counsel       contends     that      Claim   7   is

meritorious, he asserts that the remaining issues are raised

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

as to Claims 1-6 and 8-9, counsel explicitly concedes that each

issue    is   without       merit.         Because       we     conclude   that    counsel’s

effort to combine a meritorious claim with claims conceded to be

lacking in merit does not comport with the Anders framework, see

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id.    at    744-45   (setting       forth    procedure        to     be      followed     when

counsel      finds    “case    to    be   wholly       frivolous”),           we   decline   to

consider      this    appeal     pursuant        to    Anders.           Accordingly,        the

judgment of the district court is affirmed as to Claims 1-6 and

8-9.       As to Claim 10, however, while it is generally identified

as submitted pursuant to Anders, counsel does not concede that

it    is    without    merit.        Accordingly,        out     of      an    abundance     of

caution, we consider that Claim 10 (a challenge to Puryear’s

sentence), along with Claim 7 (an attack on the sufficiency of

the evidence), are properly before the Court.                                 Finding these

claims to be without merit, however, we affirm.



                        I. Sufficiency of the Evidence

              “A     defendant       challenging         the     sufficiency          of     the

evidence faces a heavy burden.”                    United States v. Foster, 507

F.3d 233, 245 (4th Cir. 2007), cert. denied, 128 S. Ct. 1690

(2008).       We review a sufficiency of the evidence challenge by

determining        whether,     viewing      the      evidence      in     the     light   most

favorable to the Government, any rational trier of fact could

find the essential elements of the crime beyond a reasonable

doubt.       United States v. Collins, 412 F.3d 515, 519 (4th Cir.

2005).

              In order to prove distribution of crack cocaine, the

Government must show:               (1) knowing or intentional distribution

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of     crack        cocaine,    and     (2)       knowledge,       at     the   time   of

distribution, that the substance distributed was a controlled

substance.          See United States v. Brower, 336 F.3d 274, 276 (4th

Cir. 2003).

               In this case, the evidence is more than sufficient to

support Puryear’s convictions of eleven counts of distribution

of   crack     cocaine.        During    the      trial,    Chambers      described,   in

detail,       each     of    her    purchases       from     Puryear,        specifically

recalling the dates on which they occurred and the particular

conversations that went on during each one.                             Sound and video

recordings were played before the jury, depicting several of the

controlled      buys.          Before   and       after    each    buy,    Chambers    was

searched       by    law    enforcement       officers.           The   lead    detective

involved in the investigation testified as to the procedures

taken to ensure that the eleven drug quantities Chambers bought

from Puryear remained unaltered from the time they were taken

from Chambers to the time they were tested at the lab.                                 All

eleven samples tested positive for crack cocaine.                            Accordingly,

we     find         that     substantial          evidence        supports      Puryear’s

convictions.

                           II. Reasonableness of Sentence

               As Puryear attempted to submit this issue pursuant to

Anders, it is arguable that he is conceding that this issue,

like    the     other       eight     mentioned      above,       is    without   merit.

                                              4
However, in his brief, he fails to explicitly state that the

district court’s sentence was reasonable, or that an appeal of

this issue is lacking in merit.                 Instead, he first contends that

the    fact     that   Puryear   sold       drugs        for        profit     was   not    a

sufficiently aggravating factor to merit a sentence at the top

of the guidelines range.            Alternatively, Puryear argues that if

he had only been convicted of Counts 9 and 10, he would only

have   been     responsible   for     8.642          grams    of    crack,     yielding    an

adversary       sentencing    range    of        sixty-three             to   seventy-eight

months’ imprisonment.

              Puryear’s second contention, an apparent attack on the

procedural reasonableness of his sentence, is dependent upon our

finding that the evidence was insufficient to support Puryear’s

convictions of the eleven counts of crack distribution totaling

forty-two grams.        However, as the evidence did support such a

finding, Puryear’s second contention is without merit.

              “Regardless of whether the sentence imposed is inside

or    outside    the   [g]uidelines     range,          the    appellate        court   must

review    the    sentence     under    an       abuse-of-discretion             standard.”

Gall v. United States, 128 S. Ct. 586, 597 (2007).                                Appellate

courts are charged with reviewing sentences for reasonableness,

with     appellate     consideration            of     both        the    procedural       and

substantive reasonableness of a sentence.                     Id. at 594, 597.



                                            5
            In     determining            procedural      reasonableness,         we     first

assess     whether    the       district         court     properly         calculated     the

defendant’s advisory guidelines range.                       Gall, 128 S. Ct. at 596-

97.      We then determine whether the district court failed to

consider     the     18    U.S.C.          § 3553(a)      (2006)        factors    and     any

arguments presented by the parties, treated the guidelines as

mandatory,       selected       a    sentence        based      on    “clearly    erroneous

facts,” or failed to sufficiently explain the selected sentence.

Id. at 597; United States v. Pauley, 511 F.3d 468, 473 (4th Cir.

2007).     Finally, we review the substantive reasonableness of the

sentence,        “taking        into        account       the        ‘totality      of     the

circumstances, including the extent of any variance from the

[g]uidelines range.’”                Pauley, 511 F.3d at 473 (quoting Gall,

128 S. Ct. at 597).

            We may afford sentences that fall within the properly

calculated guidelines range a presumption of reasonableness on

appeal.     See Gall, 128 S. Ct. at 597.                     This presumption can be

rebutted only by showing “that the sentence is unreasonable when

measured    against       the       § 3553(a)        factors.”         United     States    v.

Montes-Pineda,       445    F.3d          375,   379     (4th    Cir.    2006)     (internal

quotation marks and citation omitted).

            After     reviewing           the    trial    transcript,        we   find    that

Puryear’s     sentence       is        both      procedurally         and     substantively

reasonable.         First,          the    district      court       properly     calculated

                                                 6
Puryear’s advisory guidelines sentence at eighty-seven to 108

months’ imprisonment.            Then, after giving both Puryear and his

counsel a chance to speak, the district court determined the

appropriate sentence.            The court indicated that it considered

the 18 U.S.C. § 3553(a) (2006) sentencing factors, specifically

the nature and circumstances of the offense, the characteristics

of the defendant, and the need to promote respect for the law.

              Moreover,     because       the        sentence     fell        within    the

advisory      guidelines     range,      we     afford     it     a    presumption       of

reasonableness on appeal.              See Gall, 128 S. Ct. at 597.                Though

Puryear    believes    that      his   sale     of    drugs     for    pure    commercial

profit was insufficient justification for a sentence at the top

of the guidelines range, Puryear’s subjective disagreement with

the judge’s rationale is inadequate to rebut the presumption of

reasonableness.        The judge listed several reasons in support of

his sentence, including the fact that Puryear did not have a

single, isolated conviction for drug distribution, but instead

demonstrated       a      recurring       pattern        of      illegal         behavior.

Accordingly, we find that Puryear’s sentence was reasonable.

              Therefore,    we    affirm       the    judgment        of   the    district

court and deny Puryear’s motions to appoint new counsel and to

file a pro se brief.              We dispense with oral argument as the

facts   and    legal   contentions        are    adequately       presented        in   the



                                           7
materials before the court and further argument would not aid

the decisional process.

                                                     AFFIRMED




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