UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4409

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

HORATIO EVERHART,

Defendant – Appellant.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. N. Carlton 

Tilley, Jr., Senior District Judge. (1:08-cr-00186-NCT-2)

Submitted: March 5, 2010 Decided: March 26, 2010

Before SHEDD, AGEE, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro, 

North Carolina, for Appellant. Terry Michael Meinecke, 

Assistant United States Attorney, Greensboro, North Carolina, 

for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

Horatio Everhart pled guilty pursuant to a plea 

agreement to conspiracy to distribute fifty grams or more of 

cocaine base, in violation of 21 U.S.C. § 846 (2006). Due to 

the quantity of drugs involved, Everhart was subject to a 

ten-year mandatory minimum sentence; however, because Everhart 

qualified for the safety valve provision in 18 U.S.C. 

§ 3553(f)(1)-(5) (2006), the district court sentenced Everhart 

to 108 months’ imprisonment, which fell within Everhart’s 

advisory guidelines range. Everhart timely noted his appeal, 

and on appeal, he has filed a brief pursuant to Anders v. 

California, 386 U.S. 738 (1967).∗

In his Anders brief, Everhart suggests that his 

sentence was substantively unreasonable. According to Everhart, 

district courts, when sentencing crack cocaine offenders, should 

calculate an alternative guidelines range that eliminates the 

sentencing disparity between crack cocaine offenses and offenses 

involving an equivalent amount of powder cocaine. District 

courts, Everhart argues, could then enhance an individual 

defendant’s sentence based on the factors in 18 U.S.C. § 3553(a) 

 Finding no error, we affirm. 

 ∗ Although Everhart was informed of his right to file a pro 

se supplemental brief, he has not done so.
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(2006) and the particular circumstances surrounding the 

defendant’s conduct. 

This court reviews a sentence imposed by a district 

court under a deferential abuse of discretion standard. Gall v. 

United States, 552 U.S. 38, 51 (2007); United States v. Evans, 

526 F.3d 155, 161 (4th Cir. 2008). In reviewing a sentence, the 

appellate court must “first ensure that the district court 

committed no significant procedural error,” such as improperly 

calculating the guidelines range, failing to consider the § 

3553(a) factors, or failing to adequately explain the chosen 

sentence. Gall, 552 U.S. at 51. If there are no procedural 

errors, the appellate court then considers the substantive 

reasonableness of the sentence. Id.

“When rendering a sentence, the district court must 

make an individualized assessment based on the facts presented”

and “state in open court the particular reasons supporting its 

chosen sentence.” United States v. Carter, 564 F.3d 325, 328 

(4th Cir. 2009) (internal quotation marks and citations 

omitted). This requires the district court to provide a 

sufficient explanation of the sentence to satisfy this court 

that the district court has a reasoned basis for its decision 

and has considered the parties’ arguments. Id. When reviewing 

a sentence on appeal, this court presumes a sentence within the 
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properly calculated guidelines range is reasonable. United 

States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).

In his brief, Everhart relies on Spears v. United 

States, 129 S. Ct. 840 (2009). Spears, though, does not dictate 

a particular ratio district courts must adopt in calculating a 

defendant’s advisory guidelines range. Id. at 844. Rather, 

Spears merely recognizes a district court’s authority to 

substitute its own crack cocaine-to-powder cocaine ratio if it 

determines that the disparity embodied in the Guidelines is 

unwarranted. The district court here, in the exercise of its 

discretion, explicitly rejected the argument that the disparity 

was unwarranted. We find no abuse of discretion in the district 

court’s determination of Everhart’s sentence. 

In accordance with Anders, we have reviewed the record 

in this case and have found no meritorious issues for appeal. 

We therefore affirm Everhart’s conviction and sentence. This 

court requires that counsel inform Everhart, in writing, of the 

right to petition the Supreme Court of the United States for 

further review. If Everhart 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 Everhart.
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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