UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4438
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RODRICK LAMONT NICHOLSON,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:07-cr-00196-NCT-1)
Submitted: December 11, 2008 Decided: December 17, 2008
Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Robert Albert Jamison Lang, Assistant United
States Attorney, Winston-Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rodrick Lamont Nicholson appeals his sentence imposed
after pleading guilty to possession with intent to distribute
cocaine base. Nicholson’s counsel has filed an appeal under
Anders v. California, 386 U.S. 738 (1967), raising the issue of
whether Nicholson’s sentence was reasonable. The Government
declined to file a brief. Nicholson did not file a pro se
supplemental brief. Finding no error, we affirm.
Counsel raises the issue of whether the district court
committed error in determining Nicholson’s sentence, but
concludes that there was no sentencing error. A sentence is
reviewed for abuse of discretion, Gall v. United States, 128 S.
Ct. 586, 597 (2007), with the review encompassing both
procedural soundness and substantive reasonableness. Id.
Nicholson’s counsel questions whether Nicholson’s sentence is
unreasonable because it is greater than necessary to achieve the
aims of sentencing. In particular, counsel raises the issue of
whether the reduced crack to powder cocaine ratio should have
applied to Nicholson’s case. Although the 2007 edition of the
United States Sentencing Guidelines Manual was used, Nicholson
was a career offender; thus, his advisory Guidelines range was
unaffected by recent adjustments to the ratio. Counsel argues,
however, that because a sentencing disparity is still enshrined
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in the statute, the court should have recognized the disparity
and reduced his sentence, granting him a downward variance.
A sentence within the Guidelines range is
presumptively reasonable. The record reveals that the court
considered the 18 U.S.C. § 3553(a) (2006) factors, and there is
no indication that the district court abused its discretion in
fashioning the sentence. Applying a presumption of
reasonableness to the Guidelines sentence, see United States v.
Go, 517 F.3d 216, 218 (4th Cir. 2008); see also Rita v. United
States, 127 S. Ct. 2456, 2462-69 (2007) (upholding presumption
of reasonableness for within-Guidelines sentence), we conclude
that Nicholson has not rebutted the presumption of
reasonableness and that his sentence is reasonable.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Nicholson’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.
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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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