UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 12-4388

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

GABRIEL MCMILLIAN, a/k/a G-Mack, a/k/a Gabriel McMillan,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Aiken. Margaret B. Seymour, Chief District Judge. (1:10-cr-00968-MBS-6)

Submitted: December 20, 2012 Decided: December 26, 2012

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

Affirmed by unpublished per curiam opinion.

Derek J. Enderlin, ROSS & ENDERLIN, P.A., Greenville, South Carolina, for Appellant. Julius Ness Richardson, Assistant United States Attorney, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Gabriel McMillian pled guilty to conspiracy to possess

with intent to distribute twenty-eight grams or more of cocaine

base, in violation of

(b)(1)(B), 846 (2006). He

received a 262-month sentence. On appeal, counsel has filed a

brief pursuant to Anders v. California,

(1967),

stating that there are no meritorious issues for appeal, but

questioning whether McMillian’s sentence was reasonable.

McMillian was advised of his right to file a pro se supplemental

brief, but has not done so. The Government declined to file a

brief. We affirm.

Counsel directs our attention to the district court’s

determination that McMillian was a career offender based on its

conclusion that McMillian stopped dealing drugs in 2005 and

began anew in 2009. Thus, McMillian’s 2005 conviction, based on

conduct occurring in 2003, was not relevant conduct to the

charged conspiracy and therefore could be used to support a

career offender enhancement. We review McMillian’s sentence

“under a deferential abuse-of-discretion standard.” Gall v.

United States,

(2007). In conducting this

review, we must first ensure that the district court committed

no significant procedural error, such as failing to properly

calculate the Sentencing Guidelines range, treating the

Guidelines as mandatory, failing to consider the 18 U.S.C.

2 § 3553(a) (2006) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen

sentence. Id. at 51. “When imposing a sentence within the

Guidelines . . . the [district court’s] explanation need not be

elaborate or lengthy because [G]uidelines sentences themselves

are in many ways tailored to the individual and reflect

approximately two decades of close attention to federal

sentencing policy.” United States v. Hernandez,

(4th Cir. 2010) (internal quotation marks omitted).

Once we have determined that the sentence is free of

procedural error, we consider the substantive reasonableness of

the sentence, “tak[ing] into account the totality of the

circumstances.” Gall,

. If the sentence is

within the appropriate Guidelines range, we apply a presumption

on appeal that the sentence is reasonable. United States v.

Mendoza-Mendoza,

(4th Cir. 2010). Such a

presumption is rebutted only if the defendant demonstrates “that

the sentence is unreasonable when measured against the § 3553(a)

factors.” United States v. Montes-Pineda,

(4th Cir. 2006) (internal quotation marks omitted).

In this case, the district court did not err in

applying the career offender enhancement. Further, the court

heard argument from counsel and allocution from McMillian as to

the appropriate sentence. Counsel requested a sentence at the

3 low end of the Guidelines range and McMillian received it.

After considering the § 3553(a) factors and the advisory

Guidelines range, the court concluded that a sentence at the low

end of the Guidelines range adequately addressed the sentencing

factors. Neither counsel nor McMillian offers any grounds to

rebut the presumption on appeal that the within-Guidelines

sentence was substantively reasonable. Accordingly, we conclude

that the district court did not abuse its discretion in

sentencing McMillian.

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 McMillian, in writing,

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

for further review. If McMillian 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 McMillian. We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would

not aid the decisional process.

AFFIRMED

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