UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 09-4399


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

GIOVANNI VIRUEL,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.   Cameron McGowan Currie, District
Judge. (3:08-cr-00590-CMC-10)


Submitted:   October 14, 2010             Decided:   December 2, 2010


Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Jonathan Harvey, Columbia, South Carolina, for Appellant. James
Chris Leventis, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Mark
C. Moore, Stanley Duane Ragsdale, Assistant United States
Attorneys, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Giovanni Viruel appeals the forty-eight month sentence

imposed following his conviction for use of a telecommunication

facility in a drug trafficking crime, in violation of 21 U.S.C.

§ 843(b) (2006), and illegal reentry, in violation of 8 U.S.C.

§ 1326(a) (2006).          Viruel’s attorney has filed a brief pursuant

to Anders v. California, 

(1967), contending there

are no meritorious issues on appeal, but questioning whether the

district court erred in failing to apply a two-level reduction

pursuant         to     U.S.    Sentencing          Guidelines      Manual      (USSG)

§ 2D1.1(b)(11) (2008). *          Though informed of his right to file a

pro   se   supplemental        brief,   Viruel       has    not   done   so,   and   the

Government has elected not to file a brief.                   We affirm.

             “Regardless of whether the sentence imposed is inside

or    outside     the   [g]uidelines      range,      the    appellate    court      must

review     the    sentence     under     an       abuse-of-discretion      standard.”

Gall v. United States, 

, 51 (2007).                      Appellate courts

are charged with reviewing sentences for both procedural and

substantive reasonableness.             

counsel cites USSG § 2D1.1(b)(7) in his brief, that
section involves the application of a two-level enhancement for
distribution of an anabolic steroid and masking agent, not at
issue in this case.    The remainder of counsel’s brief makes it
clear that counsel intended to cite to USSG § 2D1.1(b)(11).



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             In       determining        procedural         reasonableness,        we     first

assess      whether         the    district         court   properly       calculated          the

defendant’s advisory guidelines range.                         

          We then

determine whether the district court failed to consider the 18

U.S.C. § 3553(a) (2006) factors and any arguments presented by

the parties, treated the guidelines as mandatory, selected a

sentence     based          on    “clearly     erroneous       facts,”      or    failed       to

sufficiently explain the selected sentence.                           

United

States v. Pauley, 

, 473 (4th Cir. 2007).                                   Finally,

we     review     the       substantive        reasonableness         of    the     sentence,

“taking      into       account       the    ‘totality         of   the     circumstances,

including       the     extent      of   any    variance       from    the       [g]uidelines

range.’”        

(quoting 

).

             A district court’s factual findings, including those

that serve as a basis for a sentencing enhancement, are reviewed

for clear error, see United States v. Kiulin, 

, 460

(4th Cir. 2004); a district court’s legal conclusions regarding

whether to apply an enhancement are reviewed de novo, see United

States v. Layton, 

, 334 (4th Cir.), cert. denied,

130    S.   Ct.       290     (2009).        Under      USSG    § 2D1.1(b)(11),           if    a

“defendant meets the criteria set forth in subdivisions (1)-(5)

of subsection (a) of § 5C1.2 (Limitation on Applicability of

Statutory       Minimum          Sentences     in    Certain    Cases),”         his    offense

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level    should     be     decreased         by    two      levels.         Viruel     bears    the

burden    of     establishing           he    satisfies          the    §    5C1.2     criteria.

United States v. Thompson, 

, 455 (4th Cir.), cert

denied, 

(2009).                         Because Viruel fails to make

such a showing, we conclude that the district court correctly

declined       to   apply     a     two-level            reduction       pursuant        to    USSG

§ 2D1.1(b)(11).

            In      accordance          with      Anders,          we   have     reviewed       the

remainder      of    the    record          and   find      no     meritorious       issues     for

appeal.        Therefore,      we       affirm        the    judgment       of   the     district

court.     This court requires that counsel inform his client, in

writing,    of      his    right       to    petition        the    Supreme      Court    of    the

United States for further review.                        If the client 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 the client.                                  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




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