UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4865
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARLOS DAILEY, a/k/a Bonecrusher,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (3:09-cr-00233-JRS-3)
Submitted: February 25, 2011 Decided: March 18, 2011
Before SHEDD, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Brian Donnelly, PRICE, PERKINS, LARKEN & DONNELLY, Virginia
Beach, Virginia, for Appellant. Neil H. MacBride, United States
Attorney, Olivia L. Norman, Assistant United States Attorney,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carlos Dailey appeals his sentence following
convictions of one count of conspiracy to distribute cocaine
base, in violation of 21 U.S.C. § 846 (2006), and one count of
distribution of cocaine base, in violation of 21 U.S.C.
§ 841(a)(1) (2006). On appeal, Dailey contends that the
district court erred in declining to vary downward based on the
sentencing disparity between crack and powder cocaine-related
offenses. Finding no reversible error, we affirm.
We review a sentence imposed by a district court under
a deferential abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 45 (2007); see United States v. Lynn, 592
F.3d 572, 578-79 (4th Cir. 2010) (abuse of discretion standard
of review applicable when defendant properly preserves a claim
of sentencing error in district court “[b]y drawing arguments
from § 3553 for a sentence different than the one ultimately
imposed”). We begin by reviewing the sentence for significant
procedural error, including such errors as “failing to calculate
(or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the [18 U.S.C.]
§ 3553(a) [2006] factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence.” Gall, 552 U.S. at 51. If there are no significant
procedural errors, we then consider the substantive
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reasonableness of the sentence, taking into account the totality
of the circumstances. United States v. Pauley, 511 F.3d 468,
473 (4th Cir. 2007).
We hold that Dailey’s sentence is procedurally and
substantively reasonable and that the district court did not
abuse its discretion in declining to vary downward. Under the
advisory Guidelines, district courts may vary from the crack-
cocaine Guidelines based on policy disagreements; they are not,
however, required to do so. Spears v. United States, 129 S. Ct.
840, 843-44 (2009). Here, the district court considered
Dailey’s variance motion, noted that there was an unwarranted
disparity between crack and powder cocaine-related sentences,
and, consequently, chose to sentence Dailey near the low end of
the Guidelines range. It was not required to go further and
sentence Dailey below the Guidelines range.
Accordingly, we affirm the district court’s judgment.
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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