UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-4390

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee, 

 v. 

ERIC DAVIS, a/k/a Lil E, 

 Defendant – Appellant. 

Appeal from the United States District Court for the District of 

South Carolina, at Columbia. Joseph F. Anderson, Jr., Chief 

District Judge. (3:07-cr-00672-JFA-1) 

Submitted: July 24, 2009 Decided: August 12, 2009 

Before NIEMEYER, MOTZ, and KING, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

Michael Chesser, Aiken, South Carolina, for Appellant. Jane 

Barrett Taylor, Assistant United States Attorney, Columbia, 

South Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

Eric Davis appeals his conviction and sentence to 97 

months in prison after pleading guilty to possession with intent 

to distribute and distribution of a quantity of cocaine base, in 

violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (2006). Davis’s 

attorney has filed a brief pursuant to Anders v. California, 386 

U.S. 738 (1967), asserting, in his opinion, there are no 

meritorious grounds for appeal but raising the issue of whether 

Davis’s within-guideline sentence of 97 months is reasonable. 

Davis has filed a pro se supplemental brief raising the issue of 

whether his attorney should have objected to the drug quantity 

used to determine his base offense level. We affirm. 

We review a sentence for abuse of discretion. Gall v. 

United States, 128 S. Ct. 586, 591 (2007). The first step in 

this review requires us to ensure that the district court 

committed no significant procedural error, such as improperly 

calculating the guideline range. United States v. Osborne, 514 

F.3d 377, 387 (4th Cir.), cert. denied, 128 S. Ct. 2525 (2008). 

We then consider the substantive reasonableness of the sentence 

imposed, taking into account the totality of the circumstances. 

Gall, 128 S. Ct. at 597. We may address a claim of ineffective 

assistance on direct appeal only if the lawyer’s ineffectiveness 

conclusively appears from the record. United States v. 

Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). 

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In sentencing, the district court should first 

calculate the guideline 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 district court should then consider the factors 

under 18 U.S.C. § 3553(a) (2006) to determine whether they 

support the sentence requested by either party. Id. When 

rendering a sentence, the district court must make an 

individualized assessment based on the facts presented, applying 

the relevant § 3553(a) factors to the specific circumstances of 

the case before it. United States v. Carter, 564 F.3d 325, 328 

(4th Cir. 2009) (quotations and citations omitted). In 

explaining the chosen sentence, the “sentencing judge should set 

forth enough to satisfy the appellate court that he has 

considered the parties’ arguments and has a reasoned basis for 

exercising his own legal decisionmaking authority.” Rita v. 

United States, 127 S. Ct. 2456, 2468 (2007). 

We have reviewed the record and conclude that the 

district court did not abuse its discretion in sentencing Davis, 

and his sentence is both procedurally and substantively 

reasonable. Moreover, the record does not conclusively show 

ineffective assistance of counsel. First, the district court 

properly determined Davis’s guideline range was 97 to 121 months 

in prison. In the plea agreement and hearing conducted pursuant 

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to Fed. R. Crim. P. 11, Davis agreed he was responsible for 

between 150 and 500 grams of cocaine base for purposes of 

determining his base offense level. Consistent with the 

parties’ stipulation, the probation officer determined Davis was 

responsible for 194.54 grams of cocaine base, and his base 

offense level was thirty-two under U.S. Sentencing Guidelines 

Manual § 2D1.1(c)(4) (2007). Neither party objected to this 

determination, as there was no basis for an objection. 

At sentencing, Davis objected to the disparity between 

the guidelines for cocaine and for cocaine base, and he argued a 

sentence below his guideline range was appropriate based on his 

personal characteristics. After listening to Davis’s argument, 

the district court inquired as to what made his case different 

in terms of a variance from another defendant similarly situated 

“using 3553(a) factors.” Davis responded that he had a minimal 

criminal history; his employment and family relationship at that 

time showed he had a capacity to adapt to supervision; and his 

upbringing was disadvantaged. 

In response, the Government acknowledged that Davis’s 

employer confirmed he was a good worker, and did not object to a 

sentence at the low end of his guideline range. However, the 

Government contended that Davis’s upbringing was not unique, and 

considering the specific facts of the case, there was nothing 

that set Davis apart from other defendants who were similarly 

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situated. Moreover, the Government argued it had already taken 

into account the facts and circumstances in the case when it 

gave Davis a plea deal dismissing a charge that would have 

carried a ten-year mandatory minimum term. 

The district court gave Davis credit for an impressive 

argument, but explained the court was not quite persuaded that a 

variance was appropriate in this case. After considering the 

advisory sentencing guidelines and relevant § 3553(a) factors, 

the district court determined a minimum guideline sentence, not 

a variance, was appropriate because Davis had already “been 

given a break in how the plea was worked out.” We conclude that 

the district court considered the parties’ arguments and made an 

individualized assessment based on the facts presented and the 

relevant § 3553(a) factors. The district court’s explanation 

was adequate, and Davis’s sentence is not greater than necessary 

to comply with the purposes of § 3553(a). 

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 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 

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withdraw from representation. Counsel’s motion must state that 

a copy thereof was served on the client. 

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