UNITED STATES of America, Plaintiff-Appellee, v. Livinson BRUMAIRE, Defendant-Appellant, 251 F. App'x 840

PER CURIAM: Livinson Brumaire was convicted after a trial of one count of conspiracy to possess with intent to distribute fifty grams of crack cocaine and five kilograms of cocaine, in violation of 21 U.S.C.A. §§ 841(b)(1)(A), 846 (West 1999 & Supp. 2007). On appeal, we affirmed the conviction but remanded the sentence for resentencing pursuant to the rules announced in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and United States v. Hughes, 401 F.3d 540 (4th Cir.2005).

The district court was instructed to consult the guidelines and determine the appropriate guidelines range of imprisonment. The court was then to consider the 18 U.S.C.A. § 3553(a) (West 2000 & Supp.2007) sentencing factors. If the court imposed a sentence outside the guidelines, the court should explain its reasons. The court was also instructed to impose a reasonable sentence within the statutorily prescribed range of imprisonment. The court imposed the same 292-month sentence. On appeal, Brumaire’s attorney filed a brief pursuant to Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating there are no meritorious issues for appeal, but raising for the court’s consideration whether the district court plainly erred in sentencing Brumaire to 292 months’ imprisonment. Brumaire filed a pro se supplemental brief raising three issues concerning his sentence. The Government did not file a brief. We affirm the sentence. Our review of the record shows that the district court properly determined the guidelines range of imprisonment, considered the § 3553(

a) factors and imposed a sentence within the guidelines. “[A] sentence within the proper advisory Guidelines range is presumptively reasonable.” United States v. Johnson, 445 F.3d 339, 341 (4th Cir.2006); see Rita v. United States, — U.S. -, 127 S.Ct. 2456, 2462-69, 168 L.Ed.2d 203 (2007) (upholding application of rebuttable presumption of reasonableness to within-guidelines sentence). Thus, we find no error at sentencing.

We find no merit to Brumaire’s arguments regarding the sentencing disparity between crack cocaine and cocaine, the court’s ability to find sentencing factors by a preponderance of the evidence standard and Brumaire’s eligibility for an amendment to the Sentencing Guidelines that is not effective as of yet. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm Brumaire’s sentence. This court requires that counsel inform Brumaire, in writing, of the right to petition the Supreme Court of the United States for further review.

If he 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 Brumaire. 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.