UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4623
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANDRE ALAN THORPE, Dre,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. James C. Dever III, District Judge. (5:18-cr-00187-D-1)
Submitted: May 15, 2020 Decided: June 10, 2020
Before WILKINSON, FLOYD, and QUATTLEBAUM, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Walter H. Paramore, III, LAW OFFICES OF W. H. PARAMORE, III, Jacksonville, North
Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P.
May-Parker, J.D. Koesters, Assistant United States Attorneys, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Andre Alan Thorpe appeals from his 480-month sentence entered pursuant to his
guilty plea to child pornography charges. The district court departed upwards to the
statutory maximum, pursuant to U.S. Sentencing Guidelines Manual § 5K2.21 (2018), on
the basis of Thorpe’s uncharged and dismissed criminal conduct. In the alternative, the
district court imposed the same sentence as alternative variance sentence. On appeal,
Thorpe asserts that his sentence was procedurally and substantively unreasonable. We
affirm.
Thorpe asserts first that the district court erred by failing to comply with the
“incremental approach” in departing upwards. We review a sentence, including a departure
or variance sentence, for reasonableness “under a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). This review entails appellate
consideration of both the procedural and substantive reasonableness of the sentence. Id. at
51. In determining procedural reasonableness, we consider whether the district court
properly calculated the defendant’s advisory Guidelines range, gave the parties an
opportunity to argue for an appropriate sentence, considered the 18 U.S.C. § 3553(a)
(2018) factors, selected a sentence based on clearly erroneous facts, and sufficiently
explained the selected sentence. Id. at 49-51. “When rendering a sentence, the district
court must make an individualized assessment based on the facts presented,” United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal quotation marks and emphasis
omitted), and “must adequately explain the chosen sentence to allow for meaningful
appellate review and to promote the perception of fair sentencing.” Gall, 552 U.S. at 50.
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If there is no significant procedural error, we review the sentence for substantive
reasonableness, “tak[ing] into account the totality of the circumstances.” Id. at 51.
With regard to USSG § 5K2.21, p.s., Thorpe contends that the district court was
required to “reference the Guidelines in determining the scope and breath of the upward
departure.” USSG § 5K2.21 provides that:
[a] 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. Thorpe does not challenge the district court’s determination that the
charges dismissed or not pursued did not enter into the determination of the applicable
Guidelines range. Instead, Thorpe contends that the district court was required to tie the
extent of the departure more closely to the Guidelines. He also points out that, even had
he been convicted after a jury trial of every charge in the indictment, he would not have
faced a 360 to Life Guidelines range.
The “incremental approach” requested by Thorpe is required when departing under
USSG § 4A1.3, based on a finding that that a defendant’s criminal history category
underrepresents the extent and nature of his criminal record. Specifically, a court should
“move to successively higher categories only upon finding that the prior category does not
provide a sentence that adequately reflects the seriousness of the defendant's criminal
conduct.” United States v. Dalton, 477 F.3d 195, 199 (4th Cir. 2007). However, neither
the explicit language of the Guidelines nor this court requires such an approach when
departing under § 5K2.21.
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Instead, the district court must “‘set forth enough to satisfy [us] that [it] . . .
considered the parties' arguments and ha[d] a reasoned basis for exercising [its] own legal
decisionmaking authority’” to impose the departure sentence. United States v.
Diosdado-Star, 630 F.3d 359, 364 (4th Cir. 2011) (quoting Rita v. United States, 551 U.S.
338, 356 (2007)). Here, the district court's detailed oral explanation demonstrates that it
accorded Thorpe a thoroughly individualized assessment and adequately explained the
reason for departure.
Thus, the district court’s decision to depart upward by four offense levels based
upon uncharged conduct, including forcible rape of a child, was reasonable. Thorpe’s
uncharged conduct in this case was horrific, and his victims were particularly vulnerable
and chosen for that reason. In light of this conduct, which Thorpe does not challenge, the
district court was within its discretion to apply the upward departure under § 5K2.21, p.s.
Moreover, even if the district court committed procedural error, we find that any
error would be harmless. The district court explicitly stated that, if any of its Guidelines
calculations were incorrect, it still would impose the statutory maximum 480-month
sentence as a variance sentence. We have held that, even where a district court errs in its
departure analysis, the same variance sentence may still be reasonable if justified by the
§ 3553(a) factors. United States v. Grubbs, 585 F.3d 793, 804 (4th Cir. 2009); see also
United States v. Hargrove, 701 F.3d 156, 161-63 (4th Cir. 2012) (discussing harmless error
inquiry). Therefore, although the district court did not commit procedural error, even if it
had, that error would be harmless because the district court expressed its intent to vary
based upon the § 3553(a) factors.
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However, Thorpe contends that his variance sentence is substantively unreasonable
because the district court did not give sufficient weight to his arguments in mitigation and
did not recognize that his Guidelines range accounted for much of the behavior the court
found disturbing. To the contrary, the record of the sentencing hearing indicates that the
district court engaged all of Thorpe’s arguments and found that his mental illness and
difficult upbringing did not excuse his criminal behavior. Moreover, the court found that
Thorpe’s conduct was “breathtaking” in its “evil” nature. The court noted a “tremendous
need to protect society” from Thorpe. The court concluded that if “there ever is a case for
a statutory maximum” sentence, Thorpe’s case was “that case.”
The district court stated that it had reviewed all Thorpe’s arguments and recited the
§ 3553(a) factors. The court framed its reasons for Thorpe’s sentence around the nature
and circumstances of the offense and Thorpe’s history and characteristics. Based on
Thorpe’s “horrific” conduct, the district court determined that the statutory maximum
sentence was necessary to incapacitate, deter, and provide just punishment. Based on this
analysis, we find that Thorpe’s sentence is substantively reasonable.
Accordingly, we affirm Thorpe’s sentence. We dispense with oral argument
because the facts and legal contentions were adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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