UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4081
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RANDY LEE CARNEY,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. James C. Dever III, District Judge. (5:16-cr-00223-D-1)
Argued: December 13, 2018 Decided: January 30, 2019
Before GREGORY, Chief Judge, and DUNCAN and DIAZ, Circuit Judges.
Affirmed by unpublished opinion. Judge Duncan wrote the opinion, in which Chief
Judge Gregory and Judge Diaz concurred.
ARGUED: Mark Russell Sigmon, SIGMON LAW, PLLC, Raleigh, North Carolina, for
Appellant. Phillip Anthony Rubin, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee. ON BRIEF: Robert J. Higdon, Jr., United States
Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
DUNCAN, Circuit Judge:
Randy Lee Carney appeals the district court’s judgment sentencing him to 120
months’ imprisonment. He contends that the court erred in applying the career offender
enhancement to his sentence because one of the offenses on which it relied did not
qualify as a predicate offense. Finding no reversible error, we affirm.
I.
Carney was indicted by a grand jury on two counts of distribution and possession
with the intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1). He
pleaded guilty to both counts.
Before sentencing, the probation office prepared a presentence report (a “PSR”),
which determined that Carney was a career offender under U.S.S.G. § 4B1.1(a). 1 This
designation was based on two prior felony convictions: a 2012 conviction for possession
with intent to sell and deliver marijuana and a 2013 conviction for assault on a law
enforcement officer causing physical injury (“ALEOCPI”), N.C. Gen. Stat. § 14-34.7(c).
The latter conviction involved Carney’s assault of a Raleigh police officer, which left the
officer with “a broken nose, a cracked tooth and whiplash.” J.A. 74, 100. The career
offender enhancement increased Carney’s total offense level from a base offense level of
1
Under the Guidelines, a defendant is a career offender if, as relevant here, the
defendant “has at least two prior felony convictions of either a crime of violence [as
defined in § 4B1.2(a)] or a controlled substance offense.” U.S.S.G. §§ 4B1.1(a),
4B1.2(a).
2
24 to 32, and after a three-level reduction for acceptance of responsibility, to 29. The
enhancement also increased his criminal history category from IV to VI. Accordingly,
Carney’s advisory Guidelines range rose from 57 to 71 months without the career
offender designation to 151 to 188 months with the enhancement.
Carney objected to the probation officer’s determination that he was a career
offender, contending that his 2013 ALEOCPI conviction did not constitute a crime of
violence and was therefore not a predicate offense for the career offender enhancement.
Carney’s sentencing hearing was continued several times pending our decision in United
States v. Thompson, 874 F.3d 412 (4th Cir. 2017), which determined whether North
Carolina assault inflicting serious bodily injury constitutes a crime of violence, because
as the district court in this case explained, it “really do[es] try to get it right.” 2 J.A. 54.
The district court ultimately overruled Carney’s objection, concluding that Carney’s 2013
ALEOCPI conviction qualified as a crime of violence under § 4B1.2(a) and that he was
therefore a career offender.
Having determined that Carney was a career offender, the court considered the 18
U.S.C. § 3553(a) factors and sentenced Carney below the Guidelines range to 120 months
in custody for each count, to run concurrently. In addition, the district court further
announced that it would have imposed the same 120-month sentence even if the career
offender enhancement did not apply. The court explained that in a “counterfactual
2
During this period, the court gave Carney notice pursuant to Federal Rules of
Criminal Procedure 32(h) that it was considering an upward departure under U.S.S.G.
§ 4A1.3(a)(1).
3
universe” where Carney was not a career offender, it would have reached the same
sentence either by an upward departure pursuant to U.S.S.G. § 4A1.3, on the basis that
Carney’s criminal history category underrepresented the seriousness of his criminal
history and his likelihood of recidivism, or by a variance. J.A. 80–81. This appeal
followed.
II.
On appeal, Carney challenges the procedural and substantive reasonableness of his
sentence, contending that the district court erred in sentencing him as a career offender
because his 2013 ALEOCPI conviction does not constitute a crime of violence under
§ 4B1.2(a). Specifically, Carney contends that, under the categorical approach, North
Carolina ALEOCPI lacks a sufficient mens rea element to categorically qualify as a
crime of violence.
Generally, we apply a “deferential abuse-of-discretion standard” in reviewing any
sentence, “whether inside, just outside, or significantly outside the Guidelines range.”
United States v. Savillon-Matute, 636 F.3d 119, 122 (4th Cir. 2011) (quoting Gall v.
United States, 552 U.S. 38, 41 (2007)). We review a sentence for reasonableness, which
has procedural and substantive components: procedural reasonableness evaluates the
method used to determine a defendant’s sentence, while substantive reasonableness
examines the totality of the circumstances to determine whether the sentence satisfies the
standards set forth in 18 U.S.C. § 3553(a). United States v. Hargrove, 701 F.3d 156,
4
160–61 (4th Cir. 2012) (quoting United States v. Mendoza-Mendoza, 597 F.3d 212, 216
(4th Cir. 2010)).
Improper calculation of a Guidelines range--such as applying a career offender
enhancement where the defendant is not in fact a career offender--constitutes a
procedural error that is subject to harmless error review. United States v. Gomez-
Jimenez, 750 F.3d 370, 382 (4th Cir. 2014); see Fed. R. Crim. P. 52 (stating that federal
courts must disregard harmless errors). Accordingly, rather than evaluating the merits of
Carney’s challenge to the calculation of the Guidelines range, we may proceed directly to
an “assumed error harmlessness inquiry.” United States v. McDonald, 850 F.3d 640, 643
(4th Cir. 2017); see Gomez-Jimenez, 750 F.3d at 382; Hargrove, 701 F.3d at 162;
Savillon-Matute, 636 F.3d at 123.
Under this inquiry, we affirm the district court’s sentence if we determine that “(1)
the district court would have reached the same result even if it had decided the guidelines
issue the other way, and (2) the sentence would be reasonable even if the guidelines issue
had been decided in the defendant’s favor.” Gomez-Jimenez, 750 F.3d at 382. The error
will only be deemed harmless when we are “certain that the result at sentencing would
have been the same” absent the enhancement. United States v. Montes-Flores, 736 F.3d
357, 370 (4th Cir. 2013) (internal quotation marks omitted) (emphasis added). We have
explained that we undertake this assumed error harmlessness inquiry because “it would
make no sense to set aside a reasonable sentence and send the case back to the district
court since it has already told us that it would impose exactly the same sentence, a
sentence we would be compelled to affirm.” Hargrove, 701 F.3d at 162 (alterations and
5
citation omitted). Therefore, we assume that Carney does not qualify as a career offender
under the Guidelines and evaluate whether, without the career offender enhancement, the
district court would have reached the same result and whether the result was reasonable.
Under the first prong, the record makes clear that the district court would have
imposed the same sentence even if the career offender enhancement did not apply.
Expressing the “need to incapacitate [Carney],” the district court provided two alternative
bases for sentencing Carney to 120 months imprisonment. J.A. 78. First, the court
announced that “in an alternative counterfactual universe had [the] career offender
[enhancement] not applied,” it would have “upwardly departed” to an offense level of 24
and a criminal history category of VI, yielding a Guidelines range of 100 to 125 months.
J.A. 80–81. Within this range, the court explained that it would have imposed a 120-
month sentence. Second, the court announced alternatively that it also would have
reached the 120-month sentence as a variance. J.A. 81. Here, where the district court
explicitly pronounced that it would have imposed the same sentence even without the
career offender enhancement and explained the basis for the alternative sentence, the first
prong is satisfied.
Carney nonetheless argues that the court’s error was not harmless because we
cannot be certain that the court would have imposed the same sentence. Carney points to
the fact that the district court delayed sentencing pending our decision in Thompson, 874
F.3d 412, arguing that the court would not have delayed sentencing if it truly believed
that Carney’s case warranted a 120-month sentence regardless of the correct Guidelines
range. Carney also contends that the court’s announcement of an alternative sentence is
6
merely standard practice. These arguments, however, are unavailing. We have
concluded that the first prong was satisfied in cases where the district court’s
pronouncement of an alternative sentence was far less clear. In Savillon-Matute, for
example, we concluded that the district court satisfied the first prong even though it did
not specifically state that it would have imposed the same sentence absent the
enhancement because the court’s sentencing intent was clear from the record. 636 F.3d at
124. In Gomez-Jimenez, we affirmed the district court’s alternative sentence under
assumed error harmlessness review even though it did not provide a separate explanation
for the alternative sentence. 750 F.3d at 383. In contrast, here, the court provided a
detailed explanation of the basis for and specifics of the parallel result. We therefore
conclude that the first prong is satisfied.
Turning to the second prong, we must determine whether Carney’s 120-month
sentence would be substantively reasonable even if the disputed issue--whether he was a
career offender--were resolved in his favor. When reviewing a sentence’s substantive
reasonableness, we “examine[] the totality of the circumstances to see whether the
sentencing court abused its discretion in concluding that the sentence it chose satisfied
the standards set forth in § 3553(a).” Id. (quoting Mendoza-Mendoza, 597 F.3d at 216).
In reviewing the § 3553(a) factors, “a sentencing court need not explicitly discuss each
factor on the record or robotically tick through § 3553(a)’s every subsection.” United
States v. Rivera-Santana, 668 F.3d 95, 105 (4th Cir. 2012) (internal quotation marks
omitted). Rather, we will “credit an articulation as clear and appropriate[] when the
7
reasons can be matched to a factor appropriate for consideration and tailored to the
defendant’s situation.” Id. (internal quotation marks omitted).
The record reflects that the district court conducted a thorough, individualized
assessment of Carney and his criminal conduct as necessary under the § 3553(a) factors
in explaining its sentence. 3 The district court considered the nature of Carney’s present
offense, as well as his history and characteristics. It noted his age and substance abuse
problems, as well as his lack of a GED, a high school diploma, or a history of
employment. The court also considered Carney’s criminal history, which began at age
eighteen, and emphasized in particular that the crimes of conviction “are not once, but
twice.” J.A. 78. The court expressed particular concern over Carney’s 2013 ALEOCPI
conviction, calling it a “very serious offense.” Id. at 77–78. Considering the “totality of
the record,” the court explained that there was a “need to incapacitate [Carney],” to
“generally deter, [and] to impose just punishment.” Id. at 78. Accordingly, given the
district court’s explanation of the § 3553(a) factors and the deferential standard of review
we apply when reviewing criminal sentences, we conclude that the sentence would be
reasonable even if the disputed issue were resolved in Carney’s favor. 4
3
Because the district court’s alternative sentence on the basis of a variance would
have been substantively reasonable, we need not determine the reasonableness of an
alternative sentence based on an upward departure.
4
Carney argues that even if the court’s sentence is reasonable, its error is not
harmless because the career offender designation formally elevated his criminal history
category from IV to VI, which has adverse consequences for his treatment in prison.
According to Carney, had the court reached the same sentence through an upward
departure, such a departure would not have formally elevated his criminal history
(Continued)
8
Because the district court made it clear that it would have imposed the same
sentence even if Carney was not a career offender, and that sentence is substantively
reasonable, we conclude that any alleged Guidelines calculation was harmless.
III.
We affirm the district court’s judgment sentencing Carney to 120 months’
imprisonment.
AFFIRMED
category. However, to support this claim, Carney relies solely upon a conversation he
had with the Probation Office and Bureau of Prisons. We find that his argument is
therefore speculative, and in the absence of any authority in support of this position, we
see no basis on which to conclude that any error was not harmless in this case.
9