UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4337
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOEL DEVON ARTIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:12-cr-00091-D-1)
Submitted: January 27, 2014 Decided: February 12, 2014
Before DAVIS, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
C. Scott Holmes, BROCK, PAYNE & MEECE, P.A., Durham, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joel Devon Artis appeals the 120-month sentence
imposed after he pled guilty to possession with intent to
distribute a quantity of marijuana and a quantity of cocaine, in
violation of 21 U.S.C. § 841(a)(1) (2012). The district court
departed upward pursuant to U.S. Sentencing Guidelines Manual
(USSG) § 5K2.21 (2011), based on Artis’s conduct in shooting an
assailant during a drug transaction that became an attempted
robbery and continuing to fire a handgun during a struggle with
the assailant. On appeal, Artis argues that the district
court’s use of this conduct to enhance his offense level
pursuant to USSG § 2D1.1(b)(1) (possession of a dangerous
weapon) and USSG § 2D1.1(b)(2) (use of violence), and also to
support an upward departure under § 5K2.21 for uncharged
conduct, amounted to impermissible double counting. We affirm.
This court reviews a sentence for procedural and
substantive reasonableness under an abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007). The
same standard applies whether the sentence is “inside, just
outside, or significantly outside the Guidelines range.” United
States v. Rivera-Santana, 668 F.3d 95, 100-01 (4th Cir.)
(internal citation and quotation marks omitted), cert. denied,
133 S. Ct. 274 (2012). In evaluating procedural reasonableness,
we consider whether the district court properly calculated the
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defendant’s advisory Guidelines range, gave the parties an
opportunity to argue for an appropriate sentence, considered the
18 U.S.C. § 3553(a) (2012) factors, selected a sentence
supported by the record, and sufficiently explained the selected
sentence. Gall, 552 U.S. at 49-51.
In reviewing any sentence outside the Guidelines
range, the appellate court must give due deference to the
sentencing court’s decision because it has “flexibility in
fashioning a sentence outside of the Guidelines range,” and need
only “set forth enough to satisfy the appellate court that it
has considered the parties’ arguments and has a reasoned basis”
for its decision. United States v. Diosdado-Star, 630 F.3d 359,
364 (4th Cir. 2011). If the sentence is free of procedural
error, the court reviews it for substantive reasonableness,
taking into account the totality of the circumstances. Gall,
552 U.S. at 51.
Section 5K2.21 of the Guidelines provides that
The court may depart upward to reflect the actual
seriousness of the offense based on conduct (1)
underlying a charge dismissed as part of a plea
agreement in the case, or underlying a potential
charge not pursued in the case as part of a plea
agreement or for any other reason; and (2) that did
not enter into the determination of the applicable
guideline range.
USSG § 5K2.21, p.s. “Double counting occurs when a provision of
the Guidelines is applied to increase punishment on the basis of
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a consideration that had been accounted for by application of
another Guideline provision or by application of a statute.”
United States v. Reevey, 364 F.3d 151, 158 (4th Cir. 2004).
Unless expressly prohibited by the Guidelines, double counting
is permitted. Id.
Even if we assume that the district court erred by
impermissibly double counting the conduct in question, a
procedural sentencing error is harmless where this court has
“(1) knowledge that the district court would have reached the
same result even if it had decided the [G]uidelines issue the
other way, and (2) a determination that the sentence would be
reasonable even if the [G]uidelines issue had been decided in
the defendant’s favor.” United States v. Savillon-Matute, 636
F.3d 119, 123 (4th Cir. 2011) (internal quotation marks
omitted). The district court in this case clearly stated that
it would impose the same sentence as an upward variance based on
its consideration of the § 3553(a) factors. Before the upward
departure, Artis’s sentencing range was twenty-seven to thirty-
three months of imprisonment, and the court’s 120-month sentence
is a variance of 263 percent. Our review of the record leads us
to conclude that the serious nature of Artis’s conduct, which
was thoroughly described by the district court, demonstrates the
need for the sentence to reflect the seriousness of the offense,
the need to protect the public by incapacitating Artis, the need
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for deterrence, and the need to impose just punishment. The
district court’s choice of an alternative upward variant
sentence was reasonable.
In light of the district court’s consideration of the
parties’ arguments and the § 3553(a) sentencing factors, and its
thorough articulation of reasons warranting the imposition of an
upward variant sentence, we find no abuse of discretion in the
district court’s determination of the extent of the variance.
United States v. Hargrove, 701 F.3d 156, 163-64 (4th Cir. 2012)
(affirming variance from zero-to-six-month Guidelines range to
sixty-month sentence), cert. denied, 133 S. Ct. 2403 (2013);
Diosdado-Star, 630 F.3d at 366-67 (affirming variance sentence
six years greater than Guidelines range because sentence was
based on the district court’s examination of relevant § 3553(a)
factors); see also United States v. Angle, 598 F.3d 352, 359
(7th Cir. 2010) (“All that matters is that the sentence imposed
be reasonable in relation to the ‘package’ of reasons given by
the court.”). Artis’s sentence is reasonable.
Accordingly, we affirm. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED
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