UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4881

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CORDELL LESTER SMITH,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Charlotte. Frank D. Whitney, 

District Judge. (3:06-cr-00067-FDW-DCK-1)

Submitted: February 25, 2011 Decided: March 21, 2011

Before NIEMEYER, GREGORY, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Leslie Carter Rawls, Charlotte, North Carolina, for Appellant. 

Amy Elizabeth Ray, Assistant United States Attorney, Asheville, 

North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Following a jury trial, Cordell Lester Smith was 

convicted of possession with intent to distribute a quantity of 

crack cocaine, in violation of 21 U.S.C.A. § 841(a), (b) (West 

1999 & Supp. 2010) (Count One), using and carrying one or more 

firearms during and in relation to a drug trafficking crime, in 

violation of 18 U.S.C. § 924(c)(1) (2006) (Count Two), and 

possession of one or more firearms by a convicted felon, in 

violation of 18 U.S.C. § 922(g) (2006) (Count Three). The court 

sentenced Smith in November 2007 to a total of 197 months’ 

imprisonment: 137 months on Count One, a concurrent 120 months 

on Count Three, and a consecutive sixty months on Count Two. On 

appeal, finding that the district court improperly presumed that 

a sentence within the guidelines range would be reasonable, this 

court vacated his sentence and remanded the case to the district 

court for resentencing. See United States v. Smith, 566 F.3d 

410 (4th Cir. 2009), cert. denied

At resentencing, as at the original sentencing, the 

district court adopted the guidelines calculations established 

in the presentence report (“PSR”). Counts One and Three were 

grouped pursuant to 

, 130 S. Ct. 1100 (2010).

U.S. Sentencing Guidelines Manual § 3D1.2(c)

(2007). The guideline for Count One, possession with intent to 

distribute cocaine base, USSG § 2D1.1, produced a higher offense 

level, twenty-eight; consequently, under USSG § 3D1.3(a), 
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Smith’s base offense level for Counts One and Three was twentyeight. With an offense level of twenty-eight and a criminal 

history category of IV, Smith’s guidelines range on Counts One 

and Three was 110 to 137 months’ imprisonment. USSG ch. 5, pt. 

A (sentencing table). However, because the statutory maximum 

sentence for Count Three under 18 U.S.C. § 924(a)(2) (2006) was 

ten years, which was less than the top of the guidelines range, 

pursuant to USSG § 5G1.1(c)(1), Smith’s guidelines range on 

Count Three became 110 to 120 months’ imprisonment. 

Additionally, pursuant to USSG § 2K2.4, Smith’s guidelines 

sentence on Count Two was five years’ imprisonment. 

Smith sought a downward variance sentence based on the 

disparity between sentences for powder cocaine and crack 

cocaine. After analyzing the 18 U.S.C. § 3553(a) (2006) 

sentencing factors and considering Smith’s arguments for a 

below-guidelines sentence, the district court again sentenced 

Smith to 197 months’ imprisonment. Smith timely appealed.

Counsel has filed a brief pursuant to Anders v. 

California

This court reviews a sentence for reasonableness, 

applying an abuse of discretion standard.

, 386 U.S. 738 (1967), finding no meritorious grounds

for appeal but questioning the reasonableness of Smith’s 

sentence. Smith filed a pro se supplemental brief asserting 

additional claims. For the reasons that follow, we affirm.

Gall v. United 
4

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

Llamas, 599 F.3d 381, 387 (4th Cir. 2010). This review requires 

appellate consideration of both the procedural and substantive 

reasonableness of a sentence. Gall

In determining procedural reasonableness, we consider 

whether the district court properly calculated the defendant’s

advisory guidelines range, considered the § 3553(a) factors, 

analyzed any arguments presented by the parties, and 

sufficiently explained the selected sentence.

, 552 U.S. at 51.

Id. “Regardless 

of whether the district court imposes an above, below, or 

within-Guidelines sentence, it must place on the record an 

individualized assessment based on the particular facts of the 

case before it.” United States v. Carter

After reviewing the record, we conclude that the 

district court properly calculated Smith’s advisory guidelines 

range, considered the § 3553(a) factors, analyzed the arguments 

presented by the parties, and gave a thorough explanation of the 

sentence it selected. We therefore hold that Smith’s sentence 

is procedurally reasonable. Where there is “no significant 

procedural error,” the court next assesses the substantive 

reasonableness of the sentence, taking “‘into account the 

totality of the circumstances, including the extent of any 

variance from the Guidelines range.’” 

, 564 F.3d 325, 330 

(4th Cir. 2009) (internal quotation marks omitted). 

United States v. Morace, 
5

594 F.3d 340, 346-47 (4th Cir.) (quoting Gall, 552 U.S. at 51), 

cert. denied

Smith’s counsel questions whether the district court 

clearly erred by finding that Smith “probably” flushed drugs 

down the toilet and therefore probably possessed more than the 

49.59 grams of crack attributable to him in the PSR. The court 

found that a preponderance of the evidence established that 

Smith “probably” was involved with more than fifty grams of 

crack because, when the officers executed the search warrant and 

entered his residence, they heard a toilet flush and encountered 

Smith emerging from the bathroom. Inside the bathroom, the 

officers discovered a glass plate with a small rock of crack, 

two sets of scales, and a razor blade. 

, 131 S. Ct. 307 (2010).

Although the court determined Smith’s offense level,

and hence his guidelines range, solely upon the 49.59 grams 

seized from his bedroom, the issue of drugs flushed down the 

toilet arose in the context of Smith’s request for a variance. 

Specifically, the court rejected counsel’s assertion that Smith 

was merely a low level dealer when arguing for the variance, 

based in part on its conclusion that Smith had probably flushed 

additional drugs down the toilet and therefore was involved with 

more than 49.59 grams of crack.

Emphasizing that a search of the sewer lines from 

Smith’s residence revealed no contraband, Smith’s counsel 
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suggests that the court clearly erred by finding that Smith 

“probably” flushed drugs down the toilet. We disagree. Given 

that there was crack belonging to Smith elsewhere in the house, 

a small quantity of crack in the bathroom along with indicia of 

drug dealing, and the fact that Smith flushed the toilet and 

emerged from the bathroom as the officers entered the residence, 

we conclude that the court did not clearly err by finding that 

it was more likely than not that Smith flushed drugs down the 

toilet and therefore was probably involved with more than the 

49.59 grams for which he was held accountable. Cf. United 

States v. Kiulin

Next, Smith’s counsel questions whether the court 

failed to adequately consider the disparity between the powder 

cocaine and crack cocaine guidelines when sentencing Smith to a 

within-guidelines sentence. The court addressed the issue at 

length with counsel, noting that Smith obtained the benefit of 

the 2007 amendments to the crack guidelines and stating that, 

although the court had the discretion to impose a lesser 

sentence, it was not obligated to do so. The court found that 

Smith was more than a low level dealer based on the quantity of 

, 360 F.3d 456, 461 (4th Cir. 2004) (holding 

that preponderance of the evidence supported findings of drug 

quantity for sentencing purposes where it “was more likely than 

not that the defendant was responsible for at least the drug 

quantity attributed to him”).
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drugs seized and the likelihood that he had flushed more drugs 

down the toilet. The court concluded that a sentence within the 

guidelines range, rather than a downwardly variant sentence, was 

warranted because Smith utilized guns in his drug activities, 

creating a risk of violence.

In Kimbrough v. United States, 552 U.S. 85 (2007), the 

Supreme Court established that a district court does not abuse 

its discretion by varying from the sentencing guidelines if it 

has a policy disagreement concerning the disparity between crack 

and powder cocaine sentences. See Spears v. United States, 555 

U.S. 261, ___, 129 S. Ct. 840, 843 (2009). However, lower 

courts have held that Kimbrough does not require a court to 

impose a sentence below the guidelines range if it does not have 

a policy disagreement with the guidelines. United States v. 

Lopez-Reyes, 589 F.3d 667, 671 (3d Cir. 2009), cert. denied, 130 

S. Ct. 2362 (2010); United States v. Caldwell, 585 F.3d 1347, 

1355 (10th Cir. 2009), cert. denied, 131 S. Ct. 209 (2010); 

United States. v. Roberson, 517 F.3d 990, 995 (8th Cir. 2008). 

Here, Smith received the benefit of the 2007 amendments to the 

sentencing guidelines designed to address the powder cocaine/ 

crack cocaine sentencing disparity. By emphasizing that its 

concern was with the combination of drugs with firearms in 

Smith’s case and not with any continuing disparity between the 

sentences for crack and powder cocaine offenses, we conclude
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that the district court implied that it did not have a policy 

disagreement with the guidelines. Because the district court

was not obligated to vary from that guidelines range under these 

circumstances, the court’s decision not to downwardly vary did 

not render Smith’s sentence substantively unreasonable. 

In accordance with Anders, we have reviewed the record 

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

We therefore affirm Smith’s sentence.∗

 Smith’s motion to file an 

amended pro se supplemental brief is denied. This court 

requires that counsel inform Smith, in writing, of the right to 

petition the Supreme Court of the United States for further 

review. If Smith 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 Smith. 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. 

 ∗ We conclude after our thorough review of Smith’s pro se 

supplemental brief that he is not entitled to relief on any of 

his pro se claims.

AFFIRMED