UN PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 16
- 4715

UNITED STATES OF AMERICA , Plaintiff

- Appellee ,

v. MARCUS MANCHION , Defendant

- Appellant

.

Appeal from the United States District Court for the Southern District of West Virginia , at Charleston

. John T. Copenhaver, Jr., District Judge. ( 2:15

- cr - 00216

- 1 )

Submitted : June 19, 2017 Decided: June 27, 2017

Before WILKINSON, AGEE, and HARRIS , Circuit Judges.

Affirmed by un published per curiam opinion

. Christian M. Capece, Federal Public Defender , Jonathan D. Byrne , Research & Writing Specialist, Rachel E

. Zimarowski, Assistant Federal Public Defender , Charleston, West Vi rginia, for Appellant. Monica D. Coleman, Assistant U nited S tates Attorney , Charleston, West Virginia, for Appellee

. Unpublished opinions are not binding precedent in this circuit.2 PER CURIAM: Marcus Manchion appeals from his conviction and 96

- month sentence imposed pursuant to his guilty plea to distribution of heroin, in violation of 21 U.S.C. § 841(a)(1) (2012). On appeal, Manchion’s counsel submitted a brief pursuant to Anders v. California , 386 U.S. 738 (1967), concluding that there are no legally nonfrivolous grounds for appeal, but questioning whether the district court erroneously designated Manchion a career offender. Although advised of his right to do so, Manchion has not filed a pro se supplemental brief. The Government declined to file a brief. After a thorough review of the record, we affirm. We review Manchion’s sentence for procedural and substantive reasonableness under a deferential abuse of discretion standard. Gall v. Unit ed States , 552 U.S. 38, 51 (2007). We must first ensure that the district court did not commit any “significant procedural error,” such as failing to properly calculate the applicable Guidelines range, failing to consider the 18 U.S.C. § 3553(a) (2012) se ntencing factors, or failing to adequately explain the sentence. Id . If we find the sentence procedurally reasonable, we then consider its substantive reasonableness. Id . “Any sentence that is within or below a properly calculated Guidelines range is p resumptively [substantively] reasonable. Such a presumption can only be rebutted by showing that the sentence is unreasonable when measured against the 18 U.S.C. § 3553(a) factors.” United States v. Louthian , 756 F.3d 295, 306 (4th Cir. 2014) (citation o mitted). The district court determined that Manchion qualified as a career offender based on two prior West Virginia convictions: a 2009 West Virginia conviction for possession3 with intent to distribute cocaine and a 2014 West Virginia conviction for attempted distribution of cocaine. C ounsel for Manchion argues that the district court erred in designa ting Manchion a career offender, asserting that Manchion’s prior attempt conviction does not qualify as a “controlled substance offense” for purposes of the career offender Guideline s . This argument is foreclosed by this c ourt’s recent decision in United States v. Dozier , 848 F.3d 180 , 187

- 88 (4th Cir. 2017) (holding that West Virginia attempt to distribute cocaine , W. Va. Code Ann. §§ 60A

- 4

- 401(a), 61

- 1 1

- 8 (LexisNexis
2014 ) , qualifies as a controlled substance offense for purposes of the career offender Guideline s)

. The district court correctly calculated Manchion’s advisory Guidelines range, heard argument from counsel, provided Manchion an opportunit y to allocute, and considered the § 3553(a) sentencing factors. We have reviewed the record and conclude that Manchion’s below

- Guidelines sentence is both procedurally and substantively reasonable. In accordance with Anders , we have reviewed the entire re cord for meritorious issues and have found none. Accordingly, we affirm Manchion’s conviction and sentence. This court requires that counsel inform Manchion, in writing, of the right to petition the Supreme Court of the United States for further review. If Manchion 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 Manc hion. We dispense with oral4 argument because the facts and legal contentions are adequately expressed in the materials before this court and argument would not aid the decisional process.
AFFIRMED