UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4557
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
AARON MONROE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Dever III,
Chief District Judge. (7:12-cr-00047-D-1)
Submitted: September 9, 2016 Decided: September 22, 2016
Before KEENAN, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mitchell G. Styers, BANZET, THOMPSON & STYERS, PLLC, Warrenton,
North Carolina, for Appellant. John Stuart Bruce, Acting 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Unpublished opinions are not binding precedent in this circuit.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:
Aaron Monroe pleaded guilty to robbery of a business
engaged in interstate commerce and aiding and abetting the same,
in violation of 18 U.S.C. §§ 1951, 2 (2012) (count one), using
and carrying a firearm during and in relation to a crime of
violence and aiding and abetting the same, in violation of 18
U.S.C. §§ 924(c), 2 (2012) (count two), and being a felon in
possession of a firearm, and aiding and abetting the same, in
violation of 18 U.S.C. §§ 922(g), 924, 2 (2012) (count three).
On resentencing, after determining that Monroe qualified as a
career offender, the district court sentenced him to 324 months’
imprisonment. We affirm.
At resentencing, Monroe objected to the determination that
he was a career offender based on his North Carolina conviction
for second degree rape in light of our decision in United
States v. Shell, 789 F.3d 335 (4th Cir. 2015). The career
offender sentencing enhancement applies if the defendant is at
least 18 years old at the time of commission of the offense for
which he is being sentenced and the instant offense is either a
crime of violence or a controlled substance offense, and the
defendant has at least two prior convictions that qualify as
either a crime of violence or a controlled substance offense.
U.S. Sentencing Guidelines Manual § 4B1.1(a) (2015). Under the
force clause for career offender predicates, a crime of violence
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is any felony that “has as an element the use, attempted use, or
threatened use of physical force against the person of another.”
USSG § 4B1.2(a).
The Government contends, however, that any error by the
district court in determining Monroe qualified as a career
offender and sentencing him to 324 months of imprisonment is
harmless because the district court asserted at sentencing that,
even if Monroe did not qualify as a career offender, it would
have imposed the same sentence based on its consideration of the
sentencing factors, 18 U.S.C. § 3553(a) (2012). Procedural
errors at sentencing are “routinely subject to harmlessness
review.” United States v. Savillon-Matute, 636 F.3d 119, 123
(4th Cir. 2011); see Puckett v. United States, 556 U.S. 129, 141
(2009).
“‘[A]ssumed harmlessness inquiry’ requires (1) ‘knowledge
that the district court would have reached the same result even
if it had decided the guidelines issue the other way,’ and
(2) ‘a determination that the sentence would be reasonable even
if the guidelines issue had been decided in the defendant’s
favor.’” United States v. Gomez-Jimenez, 750 F.3d 370, 382 (4th
Cir. 2014). The error will be deemed harmless only where the
court is “certain” of these two factors. United States v.
Gomez, 690 F.3d 194, 203 (4th Cir. 2012). Because the district
court stated that it would have imposed the same sentence as an
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upward variance even if Monroe were not a career offender, we
find that the first prong of the harmlessness inquiry is
satisfied.
We “review all sentences — 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). We review the substantive reasonableness of a
sentence, considering “the totality of the circumstances to see
whether the sentencing court abused its discretion in concluding
that the sentence it chose satisfie[s] the standards set forth
in § 3553(a).” Gomez-Jimenez, 750 F.3d at 382. When the
district court imposes a variant sentence, this court considers
“whether the sentencing court acted reasonably both with respect
to its decision to impose such a sentence and with respect to
the extent of the divergence from the sentencing range.” United
States v. Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir.
2007).
In determining Monroe’s sentence, the district court
expressly considered his history and characteristics — including
his numerous prior convictions, the nature and circumstances of
the offenses of conviction, the seriousness of the offenses, the
need to promote respect for the law, and the need to provide
punishment. The court determined that there was a great need
for deterrence. The court also emphasized the need to protect
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the public, opining that Monroe participated in a “crime wave of
terrible conduct that harms people” when he is not imprisoned.
After considering all of the § 3553(a) factors, the
district court determined that a 324-month sentence was
appropriate. In light of the district court’s thorough
consideration of the sentencing factors and its individualized
assessment of the factors as they related to Monroe, we conclude
that the 324-month upward variant sentence is reasonable and
that any error by the district court in concluding that Monroe
was a career offender, is harmless. See Gomez-Jimenez, 750 F.3d
at 382.
Accordingly, we affirm Monroe’s sentence. 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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