UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-5233


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DANIEL ANTONIO SANDERS,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Louise W. Flanagan,
Chief District Judge. (5:08-cr-00174-FL-2)


Submitted:   January 21, 2010             Decided:    March 19, 2010


Before NIEMEYER, MICHAEL, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


John Keating Wiles, CHESHIRE, PARKER, SCHNEIDER, BRYAN & VITALE,
Raleigh, North Carolina, for Appellant.   George E. B. Holding,
United States Attorney, Anne M. Hayes, Jennifer P. May-Parker,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Daniel      Antonio         Sanders     pled    guilty      to     being     an

accessory after the fact in a Hobbs Act robbery, 18 U.S.C. § 3

(2006), without a plea agreement, and was sentenced to a term of

sixty-three      months      imprisonment.           He    appeals      his    sentence,

arguing that the district court abused its discretion in denying

his request for a one-level downward variance to compensate for

the government’s refusal to move for a one-level reduction under

U.S. Sentencing Guidelines Manual § 3E1.1(b) (2008).                          We affirm.

            Sanders’        co-defendant,         Kendricus      Williams,      robbed    a

convenience store and escaped in a vehicle driven by Sanders.

They were immediately pursued by police.                         Sanders crashed the

vehicle   after    a    high-speed        chase;    both    he    and   Williams       were

arrested.     In an unprotected statement to the police following

his arrest, Sanders said he drove Williams to the store not

knowing Williams intended to rob it, but that he saw a gun in

Williams’   waistband            when   Williams    returned       to   the     car,   saw

Williams counting money, and heard Williams indicate that he had

robbed the store.

            At    his       sentencing      hearing,       Sanders      challenged       an

enhancement recommended in the presentence report for possession

or   brandishing       of    a    firearm   during        the    offense      under    USSG

§ 2B3.1(b)(2)(C).           Sanders asserted that he was unaware that

Williams intended to rob the store and was not responsible for

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conduct that occurred before he knowingly became involved in the

offense.           The     district       court     overruled     his      objection,

specifically holding that the objection was not frivolous.                          The

court further found that Sanders had accepted responsibility and

awarded him a two-level reduction under USSG § 3E1.1(a).

             The     government          nonetheless       characterized     Sanders’

objection as frivolous and refused to move for the additional

one-level     reduction           available       under     § 3E1.1(b)     when     the

defendant has “timely notif[ied] authorities of his intention to

enter a plea of guilty, thereby permitting the government to

avoid preparing for trial and permitting the government and the

court to allocate their resources efficiently[.]”

             Sanders responded that he had given early notice that

he   would   plead       guilty    and    requested    a    one-level    variance    to

offset the government’s action.                  The district court decided not

to grant a variance, stating that the government was “within its

province to not move for the reasons it deems appropriate for

that third point of acceptance of responsibility.”                       When defense

counsel asked the government to explain for the record why it

had refused a motion under § 3E1.1(b), the government stated:

      [T]he government has, in its view, applied the
      application note to 3E1.1 in a manner which accords
      with the prerogatives of the executive branch, and
      that is to not move in a case where the government
      does not feel that the defendant has fully accepted
      responsibility for his actions, and those actions


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      include   the   relevant   conduct.     And   that                                   is
      specifically listed there in the application note.

              Sanders’       advisory    guideline        range       was       57-71     months.

The   district       court     imposed    a    sentence         of    sixty-three           months

imprisonment.

              On     appeal,    Sanders       argues      that       the    district          court

abused its discretion when it denied his request for a one-level

variance on the ground that the government had discretion to

refuse to move for a one-level adjustment under § 3E1.1(b) for

whatever reasons it deemed appropriate.

              We review a sentence for reasonableness under an abuse

of discretion standard.               Gall v. United States, 

, 51

(2007).        This        review     requires       consideration              of     both     the

procedural and substantive reasonableness of a sentence.                                        

whether the district court properly calculated

the    defendant’s         advisory     guideline        range,        we       next      consider

whether the district court considered the 18 U.S.C. § 3553(a)

(2006) factors, analyzed the arguments presented by the parties,

and   sufficiently         explained     the       selected      sentence.             Id.;     see

United      States    v.    Carter,     

,    330       (4th      Cir.     2009)

(holding that, while the “individualized assessment need not be

elaborate or lengthy, . . . it must provide a rationale tailored

to    the    particular        case    . . .       and   [be]        adequate        to     permit

meaningful         appellate        review”).            Finally,          we     review        the


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substantive reasonableness of the sentence, “taking into account

the totality of the circumstances, including the extent of any

variance from the Guidelines range.”                  United States v. Pauley,

, 473 (4th Cir. 2007).              In this circuit, substantive

reasonableness review presumes that a sentence imposed within

the properly calculated guidelines range is reasonable.                          United

States v. Green, 

, 457 (4th Cir. 2006) (adopting

presumption of reasonableness); see also Rita v. United States,

, 347 (2007) (upholding rebuttable presumption of

reasonableness for within-guidelines sentence).

              Other       circuits   have   held     that     the    government     may

withhold      a    motion    under   § 3E1.1(b)      on   a   variety      of   grounds

unrelated to the timeliness of the guilty plea if its decision

serves some legitimate government interest, equating the limits

on its discretion under § 3E1.1(b) with the constraints to its

filing a motion for a substantial assistance departure under

USSG § 5K1.1, as set out in Wade v. United States, 

,

186-87 (1992) (holding that government not obligated to file

motion for substantial assistance departure, but refusal may not

be   based    on     unconstitutional       motive    and     must    be   rationally

related to legitimate government end).                      See United States v.

Johnson, 

, 1003 (9th Cir. 2009) (holding that the

desire   to       avoid    “the   expenditure   of    additional       resources     in

anticipation of and defending against an appeal is a legitimate

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governmental interest”); United States v. Drennon, 

,

163 (3d Cir. 2008) (government’s refusal to make motion because

defendant moved to suppress evidence was rationally related to

legitimate government interest of “efficient allocation of the

government’s        litigating         resources”);           United      States    v.   Newson,

,    379       (5th    Cir.      2008)      (holding      that    defendant’s

refusal      to    waive    his       right       to    appeal      is    proper    basis      for

government to refuse motion, “as it is rationally related to the

purpose of the rule and is not based on an unconstitutional

motive”); United States v. Moreno-Trevino, 

, 1185-

86 (10th Cir. 2005) (prosecutors should have same discretion

under § 3E1.1(b) as under § 5K1.1, citing Wade).

              Thus,       the    weight      of    authority        currently      favors      the

application of the limits set forth in Wade to the government’s

discretion        under    § 3E1.1(b).             Moreover,        the    sentencing         court

retains the discretion to grant or deny a requested variance.

The sentencing court’s decision not to vary below the guideline

range is presumptively reasonable, 

, and we

conclude      that    Sanders          has    not       rebutted     the     presumption        of

reasonableness.

              Therefore,         we     affirm         the    sentence      imposed      by    the

district     court.         We    dispense        with       oral   argument       because     the

facts   and       legal    contentions         are      adequately        presented      in    the



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materials   before   the   court   and   argument   would   not   aid   the

decisional process.

                                                                  AFFIRMED




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