UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4520
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LINWOOD BATTS, JR.,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
Chief District Judge. (5:07-cr-00064-FL-1)
Submitted: April 20, 2011 Decided: April 28, 2011
Before TRAXLER, Chief Judge, and NIEMEYER and KING, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
David L. Neal, Hillsborough, North Carolina, for Appellant.
George E. B. Holding, United States Attorney, Ethan A. Ontjes,
Jennifer P. May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Linwood Batts, Jr., pled guilty, pursuant to a written
plea agreement, to conspiracy to possess with the intent to
distribute cocaine, in violation of 21 U.S.C. § 846 (2006), and
using and carrying a firearm during and in relation to a drug
trafficking crime, in violation of 18 U.S.C. § 924(c) (2006).
The district court calculated Batts’ Guidelines sentence on the
firearm count at eighty-four months’ imprisonment, see U.S.
Sentencing Guidelines Manual (“USSG”) (2007). At sentencing,
the Government moved for an upward departure under USSG
§§ 4A1.3, p.s., and 5K2.9, p.s. The district court granted the
Government’s motion, imposed an upward departure pursuant to
USSG § 5K2.9, p.s., and sentenced Batts to 142 months’
imprisonment on the firearm count, to be served consecutively to
a fifty-seven month prison sentence on the drug conspiracy
count, for a total imprisonment term of 199 months. * On appeal,
*
We previously affirmed the district court’s imposition of
the fifty-seven month prison sentence on the drug conspiracy
count but vacated the sentence on the firearm count and remanded
for resentencing. United States v. Batts, 317 F. App’x 329,
332-33 (4th Cir. 2009) (No. 08-4179). At resentencing, the
Government moved for an upward departure, but the district court
refused to allow the motion, reasoning that our opinion
precluded the granting of an upward departure on remand. The
Government appealed, and we again vacated the sentence on the
firearm count and remanded for resentencing, concluding that the
district court misunderstood the scope of our mandate. United
States v. Batts, 363 F. App’x 230, 232 (4th Cir. 2010) (No. 09-
4676).
2
Batts challenges his sentence on the firearm count, arguing that
the district court erred in imposing the upward departure under
USSG § 5K2.9, p.s. We affirm.
We review the district court’s sentence, “whether
inside, just outside, or significantly outside the Guidelines
range,” under a “deferential abuse-of-discretion standard.”
Gall v. United States, 552 U.S. 38, 41 (2007). This abuse-of-
discretion standard of review involves two steps; under the
first, we examine the sentence for significant procedural
errors, and under the second, we review the substance of the
sentence. United States v. Pauley, 511 F.3d 468, 473 (4th Cir.
2007) (examining Gall, 552 U.S. at 50-51). Significant
procedural errors include “failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines 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.” Gall, 552 U.S. at 51. If there are no significant
procedural errors, we then consider the substantive
reasonableness of the sentence, “tak[ing] into account the
totality of the circumstances.” Id.
When the district court imposes a departure sentence,
we consider “whether the sentencing court acted reasonably both
with respect to its decision to impose such a sentence and with
3
respect to the extent of the divergence from the sentencing
range.” United States v. Hernandez-Villanueva, 473 F.3d 118,
123 (4th Cir. 2007). This court has recognized, however, that a
district court’s error in applying a departure sentence is
harmless if the sentence is ultimately justified by the
§ 3553(a) sentencing factors. United States v. Evans, 526 F.3d
155, 165 (4th Cir. 2008) (“[E]ven assuming the district court
erred in applying the Guideline departure provisions, [the
defendant’s] sentence, which is well-justified by [the]
§ 3553(a) factors, is reasonable.”); see Puckett v. United
States, 129 S. Ct. 1423, 1432 (2009) (stating that “procedural
errors at sentencing . . . are routinely subject to harmlessness
review”).
Citing United States v. Rybicki, 96 F.3d 754 (4th Cir.
1996), Batts argues that the district court erred in imposing an
upward departure under USSG § 5K2.9, p.s. However, even
assuming the district court erred in upwardly departing under
USSG § 5K2.9, p.s., in view of the court’s thorough and
meaningful articulation of relevant § 3553(a) factors that also
justified the imposition of the 142-month sentence, we conclude
that the sentence is reasonable.
We therefore affirm the amended judgment of
conviction. We dispense with oral argument because the facts
4
and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
5