UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4090
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RASHAD JACOBS,
Defendant - Appellant.
No. 14-4092
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RASUL GATFORD,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Terrence W. Boyle,
District Judge. (7:13-cr-00010-BO-3; 7:13-cr-00010-BO-2)
Submitted: August 21, 2014 Decided: September 3, 2014
Before NIEMEYER, SHEDD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ronald Cohen, Wilmington, North Carolina; Daniel Henry Johnson,
WILLIS JOHNSON & NELSON, PLLC, Raleigh, North Carolina, for
Appellants. Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Shailika K. Shah, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Rashad Jacobs and Rasul Gatford each pled guilty,
pursuant to a plea agreement, to brandishing a firearm during a
drug trafficking crime, in violation of 18 U.S.C. §§ 2, 924(c)
(2012). The district court sentenced them to 120 months’
imprisonment, an upward variance of 36 months from the
Sentencing Guidelines range. See U.S. Sentencing Guidelines
Manual § 2K2.4(b) (2013). Jacobs and Gatford appeal, claiming
that their sentences are substantively unreasonable. We affirm.
We review the district court’s sentence, “whether
inside, just outside, or significantly outside the Guidelines
range[,]” for reasonableness “under a deferential abuse-of-
discretion standard.” Gall v. United States, 552 U.S. 38, 41,
51 (2007). Because Jacobs and Gatford do not challenge the
procedural reasonableness of their sentences, we turn our
attention to substantive reasonableness and consider “the
totality of the circumstances, including the extent of any
variance from the Guidelines range.” Id. at 51. An upward
variance is permitted where justified by the 18 U.S.C. § 3553(a)
(2012) factors. See id. We “must give due deference to the
district court’s decision that the § 3553(a) factors, on a
whole, justify the extent of a variance,” and “[t]he fact that
[we] might reasonably have concluded that a different sentence
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was appropriate is insufficient to justify reversal of the
district court.” Id.
Jacobs and Gatford assert that the district court
improperly relied upon the need to avoid unwarranted sentencing
disparities under 18 U.S.C. § 3553(a)(6) to the exclusion of the
other statutory sentencing factors. We disagree. The district
court described how Appellants’ individual actions were more
culpable than those of defendants with similar charges and were
analogous to discharging a firearm. We also conclude that the
court did not improperly rely upon the sentence imposed on a co-
defendant to determine the length of the variance.
Jacobs and Gatford also argue that their sentences are
contrary to Congress’ intent for different mandatory minimum
sentences to apply to brandishing and discharging a firearm.
However, Congress left district courts with the option of
imposing sentences of seven years or more for brandishing a
firearm if the facts so warranted. See 18 U.S.C. § 924(c)(1)(A)
(declining to set maximum sentence). Therefore, Congress’
intent in formulating § 924(c) does not render unreasonable the
district court’s imposition of 120-month sentences under
§ 924(c)(i)(A)(ii). ∗
∗
To the extent Appellants raise new claims in their reply
brief, those claims are not properly before the court. See
United States v. Ashford, 718 F.3d 377, 383 n.* (4th Cir. 2013).
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Accordingly, we hold that the upward variance imposed
by the district court is substantively reasonable, and we affirm
the judgment of the district court. 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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