                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4581


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

SIMERNON ROGERS,

                  Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley.    Thomas E. Johnston,
District Judge. (5:07-cr-00013-1)


Submitted:    January 30, 2009              Decided:   March 5, 2009


Before GREGORY, DUNCAN, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Christian M. Capece, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Miller A.
Bushong, III, OFFICE OF THE UNITED STATES ATTORNEY, Beckley,
West Virginia; Elizabeth Jean Howard, Assistant United States
Attorney, Greenville, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Simernon        Rogers        appeals   from     the    sentence    imposed

after he pleaded guilty to distribution of more than fifty grams

of    cocaine     base    in     violation     of   21    U.S.C.    § 841(a)    (2006).

Counsel     has     filed      a     brief     in   accordance       with    Anders     v.

California, 386 U.S. 738 (1967), stating that after a review of

the record, there are no meritorious issues for appeal.                          Rogers

has not filed an informal supplemental brief, and the Government

has declined to file a brief.                  Rogers’ Anders brief argues that

the   amended     crack     to      powder    cocaine    ratio     still    affects    his

sentence    and     the     district        court   should    have    considered       the

continuing      disparity          and    imposed   a    lower     sentence.   He     also

argues that the sentence is greater than necessary to comply

with the purposes of 18 U.S.C. § 3553(a) (2006) because Rogers

does not have a history of criminal violence.                       Finding no error,

we affirm.

            We review Rogers’ sentence under a deferential abuse

of discretion standard.                  See Gall v. United States, 128 S. Ct.

586, 590 (2007).            The first step in this review requires the

court to ensure that the district court committed no significant

procedural error, such as improperly calculating the Guidelines

range.     United States v. Osborne, 514 F.3d 377, 387 (4th Cir.),

cert.     denied,    128       S.    Ct.     2525   (2008).        Other    significant

procedural errors include “treating the Guidelines as mandatory,

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failing to consider the § 3553(a) factors, selecting a sentence

based    on    clearly       erroneous        facts,         or    failing      to     adequately

explain the chosen sentence.”                        Gall, 128 S. Ct. at 597.                      The

court    then      considers         the    substantive            reasonableness           of    the

sentence, taking into account the totality of the circumstances.

Id.     This       court     presumes       that      a    sentence       within      a    properly

calculated Guidelines range is reasonable.                                 United States v.

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

              In      sentencing,          the       district        court       should          first

calculate       the      Guidelines         range          and     give    the        parties      an

opportunity         to       argue     for       whatever           sentence          they        deem

appropriate.          United States v. Pauley, 511 F.3d 468, 473 (4th

Cir.    2007).         The    court        should         then    consider      the       § 3553(a)

factors to determine whether they support the sentence requested

by either party.             Id.     While a district court must consider the

statutory       factors       and     explain         its        sentence,       it       need    not

explicitly reference § 3553(a) or discuss every factor on the

record, particularly when the court imposes a sentence within a

properly calculated Guidelines range.                            United States v. Johnson,

445 F.3d 339, 345 (4th Cir. 2006).

              In Kimbrough v. United States, 128 S. Ct. 558 (2007),

the    Supreme      Court     held     that      “it       would     not   be    an       abuse     of

discretion for a district court to conclude when sentencing a

particular defendant that the crack/powder disparity yields a

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sentence     ‘greater       than     necessary’      to        achieve    § 3553(a)’s

purposes, even in a mine-run case.”                   Id. at 575.           While the

district court did not specifically address the crack sentencing

ratio, it did not indicate that it was constrained from doing

so.       Further,    the   court     articulated        its     main    concerns   in

fashioning the sentence.              The court correctly calculated the

Guidelines range and then gave both parties the opportunity to

argue for whatever sentence they deemed appropriate.                        Thus, the

district court committed no procedural or substantive error, and

Rogers’    sentence,     which      was   within   the     calculated       Guidelines

range, is presumptively reasonable.                Therefore, we conclude that

there was no abuse of discretion by the district court.

              In     accordance     with    Anders,       we    have     reviewed   the

record in this case and have found no meritorious issues for

appeal.      We therefore affirm Rogers’ conviction and sentence.

This court requires that counsel inform Rogers, in writing, of

the right to petition the Supreme Court of the United States for

further review.         If Rogers 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 Rogers.              We dispense with oral argument because

the facts and legal contentions are adequately presented in the



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materials   before   the   court   and   argument   would   not   aid   the

decisional process.

                                                                  AFFIRMED




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