UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 10-4205


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

          v.

LEWIS R. HARDY,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.    Mark S. Davis, District
Judge. (2:07-cr-00120-WDK-JEB-1)


Submitted:   October 25, 2010               Decided:   November 29, 2010


Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Jennifer T. Stanton, J.T. STANTON P.C., Norfolk, Virginia, for
Appellant. Kevin Michael Comstock, Assistant United States
Attorney, Norfolk, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Lewis R. Hardy was convicted after a jury trial of

conspiracy      to   possess     with   intent       to   distribute     heroin      and

cocaine base (“crack”), in violation of 21 U.S.C. §§ 841(a)(1),

846   (2006);    possession      with   intent       to   distribute     heroin      and

crack, in violation of § 841(a)(1); possession with intent to

distribute heroin and crack within 1000 feet of a school, in

violation of 21 U.S.C. §§ 841(a)(1), 860 (2006); and possession

of a firearm in furtherance of a drug trafficking crime, in

violation of 18 U.S.C. § 924(c) (2006).                      The district court

sentenced    Hardy    to   185    months       of   imprisonment   and    he   timely

appealed.     On appeal, this court affirmed Hardy’s convictions,

but vacated his sentence and remanded for resentencing based on

an error in the criminal history calculations under the advisory

sentencing guidelines.           See United States v. Hardy, 322 F. App’x

298 (4th Cir. 2009).

            On remand, the district court sentenced Hardy to 168

months of imprisonment and Hardy now appeals.                  Appellate counsel

has filed a brief pursuant to Anders v. California, 

(1967), raising two issues.                Hardy has also filed a pro se

supplemental brief. *      Finding no error, we affirm.


      *
       We have reviewed the arguments raised in the                            pro    se
supplemental brief and conclude that they lack merit.



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               Counsel          first    questions         whether      the    district        court

erred in calculating the advisory guidelines range.                                  We review a

sentence       for    reasonableness,             applying       an    abuse    of    discretion

standard.        Gall v. United States, 

, 51 (2007); see

also United States v. Layton, 

, 335 (4th Cir.),

cert. denied, 

(2009).                                In so doing, we first

examine        the    sentence           for     “significant           procedural         error,”

including “failing to calculate (or improperly calculating) the

[g]uidelines         range,          treating     the      [g]uidelines        as     mandatory,

failing to consider the [18 U.S.C.] § 3553(a) [(2006)] factors,

selecting       a    sentence           based    on       clearly      erroneous      facts,       or

failing    to       adequately          explain     the     chosen      sentence      .    .   .   .”

.        Finally,        we    “then    consider           the

substantive reasonableness of the sentence imposed.”                                     

   presumes          on    appeal      that     a    sentence      within      a    properly

calculated           advisory           guidelines             range     is     substantively

reasonable.          Rita v. United States, 

, 346-56 (2007)

(upholding presumption of reasonableness for within guidelines

sentence).

               We have thoroughly reviewed the record and conclude

that     the     district            court      properly        calculated      the       advisory

guidelines range.               Moreover, the court considered the guidelines

range along with the § 3553(a) factors, thoroughly explained its

chosen     sentence,            and     responded         to    the    parties’       sentencing

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arguments.      See United States v. Carter, 

, 330 (4th

Cir.    2009)       (district          court       must         conduct        individualized

assessment based on the particular facts of each case, whether

sentence is above, below, or within the guidelines range).                                     In

addition,     we    find       that    the     sentence          is     also    substantively

reasonable.

            Counsel        next    questions         whether           the    district      court

erred in denying Hardy’s pro se motion for a new trial based on

newly-discovered          evidence.          This         court       reviews    a     district

court’s    denial     of    a     motion       for    a    new        trial    for    abuse     of

discretion.        See United States v. Fulcher, 

, 249

(4th   Cir.        2001).         To      receive          a     new     trial        based    on

newly-discovered evidence, a defendant must demonstrate that (1)

the evidence is newly-discovered; (2) he has been diligent in

uncovering it; (3) it is not “merely cumulative or impeaching”;

(4) it is “material to the issues involved”; and (5) it would

probably    produce       an     acquittal.           

.

Having reviewed the record and the applicable legal authorities,

we   conclude      that    the    court      did     not       abuse    its    discretion      in

denying Hardy’s motion for a new trial.

            We have examined the entire record in this case in

accordance with the requirements of Anders and have found no

meritorious issues for appeal.                  We therefore affirm the judgment

of the district court.             This court requires that counsel inform

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Hardy, in writing, of the right to petition the Supreme Court of

the United States for further review.              If Hardy 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 Hardy.                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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