UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-4589

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

DEANTE DRAKE, 

 Defendant - Appellant. 

Appeal from the United States District Court for the Northern 

District of West Virginia, at Clarksburg. Irene M. Keeley, 

District Judge. (1:07-cr-00053-IMK-JSK-1) 

Submitted: February 27, 2009 Decided: March 16, 2009 

Before MICHAEL, MOTZ, and KING, Circuit Judges. 

Dismissed in part; affirmed in part by unpublished per curiam 

opinion. 

Jane Moran, JANE MORAN LAW OFFICE, Williamson, West Virginia, 

for Appellant. Shawn Angus Morgan, Assistant United States 

Attorney, Clarksburg, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

 Deante Drake appeals the 292-month sentence imposed 

following his guilty plea to conspiracy to possess with intent 

to distribute and to distribute fifty grams or more of cocaine 

base (“crack”), in violation of 21 U.S.C. §§ 841, 846 (2006). 

The Government has moved to dismiss Drake’s appeal based upon a 

waiver of appellate rights in his plea agreement. 

 We conclude that Drake’s appeal of his sentence is 

barred by his waiver of appellate rights, except for his claim 

that his sentence was impermissibly based upon race. United 

States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992). 

Accordingly, we grant the motion to dismiss in part and dismiss 

the appeal of the claims not based on race. We also deny the 

motion to dismiss in part on the ground that Drake’s claim of 

racial bias falls outside the scope of the waiver provision and 

affirm the sentence. 

 Turning to the non-waived issue, Drake, an African 

American, contends that his career offender sentence was 

unreasonable, both because his Caucasian co-defendants received 

lighter sentences and because a study by the United States 

Sentencing Commission found that the career offender provision 

has a disparate impact on black males. We find Drake’s 

arguments unpersuasive. 

2 
 A district court must engage in a multi-step process 

at sentencing. First, it must calculate the appropriate 

advisory Guidelines range. It then must consider the resulting 

range in conjunction with the factors set forth in 18 U.S.C. 

§ 3553(a) (2006) and determine an appropriate sentence. Gall v. 

United States, 128 S. Ct. 586, 596 (2007). Courts of appeal 

review a sentence for reasonableness, applying an abuse of 

discretion standard. Id. at 597; United States v. Go, 517 F.3d 

216, 218 (4th Cir. 2008). In conducting this review, this court 

must first determine that the district court did not commit any 

significant procedural error, such as failing to 

calculate (or improperly calculating) the Guidelines 

range, treating the Guidelines as mandatory, failing 

to consider the § 3553(a) factors, selecting a 

sentence based on clearly erroneous facts, or failing 

to adequately explain the chosen sentence--including 

an explanation for any deviation from the Guidelines 

range. 

Gall, 128 S. Ct. at 597. We then consider the substantive 

reasonableness of the sentence, and may apply a presumption of 

reasonableness to a within-Guidelines sentence. Go, 517 F.3d at 

218; see Gall, 128 S. Ct. at 597. 

 It is undisputed that Drake qualified as a career 

offender and that the district court properly calculated the 

advisory Guidelines range. The district court adequately 

contemplated the § 3553(a) factors, the role Drake played in the 

offense in comparison to that of his co-defendants, and 

3 
4 

considered whether to impose a variance sentence before 

ultimately deciding to sentence Drake at the bottom of the 

Guidelines range. We find no evidence to support Drake’s claim 

that his sentence impermissibly was based on race. See United 

States v. Moore, 481 F.3d 1113, 1115 (8th Cir. 2007) (rejecting 

challenge to career offender sentence based on racially 

disparate impact of career offender provision). 

 For these reasons, we dismiss in part and affirm in 

part. 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. 

DISMISSED IN PART;

AFFIRMED IN PART