UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4801

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ALLEN BAIRD, a/k/a Scratch,

Defendant - Appellant.

Appeal from the United States District Court for the Southern

District of West Virginia, at Huntington. Robert C. Chambers,

District Judge. (3:06-cr-00031)

Submitted: February 22, 2007 Decided: February 28, 2007

Before WILLIAMS, MOTZ, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

George B. Vieweg, III, BAYLISS & PHELAN, PLLC, Charleston, West

Virginia, for Appellant. Charles T. Miller, United States Attorney,

R. Gregory McVey, Assistant United States Attorney, Huntington,

West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Allen Baird pled guilty to aiding and abetting the

distribution of five grams or more of cocaine base (crack), in

violation of 21 U.S.C. § 841(a) (2000), and was sentenced as a

career offender, see U.S. Sentencing Guidelines Manual § 4B1.1

(2005), to 220 months imprisonment. Baird appeals, arguing that

his sentence is plainly unreasonable because the district court did

not depart below the career offender guideline range. We affirm.

At his sentencing hearing, Baird did not contest the

calculation of the advisory guideline range contained in the

presentence report, and conceded that he qualified for sentencing

as a career offender because he had two prior felony drug

convictions. His attorney commented that Baird’s career offender

status was “patently unfair” because the prior offenses involved

small amounts of cocaine and because Baird had a history of drug

abuse. Counsel acknowledged that the career offender sentencing

scheme was “out of the control of this Court, [and] it could only

change via Congress or the Supreme Court.” Counsel requested a

sentence at the low end of the advisory guideline range. It is not

evident from the materials presented on appeal that Baird requested

a sentence outside the guideline range. On appeal, however, Baird

contends that his sentence is presumptively unreasonable because

the district court failed to give him a variance sentence within
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the range that would have applied had he not been a career

offender.

The sentencing court’s first responsibility, even after

United States v. Booker, 543 U.S. 220 (2005), is to correctly

determine the applicable guideline range. United States v. Hughes,

401 F.3d 540, 546 (4th Cir. 2005). Baird does not allege that the

district court erred in this respect. If the court then determines

that a sentence within that range does not serve the factors set

out in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006), the court

may consider a departure or a variance sentence. The record here

discloses that the district court was well aware of its

responsibilities, and decided that it could not discern “any reason

not to apply the career offender provisions . . . . or to apply a

sentence that is outside the guideline range.” Consequently, we

find no basis for concluding that the sentence is unreasonable. 

We therefore affirm the sentence imposed by the district

court. 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