UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4930
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALBERT HENRY JONES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (5:10-cr-00144-D-2)
Submitted: April 24, 2012 Decided: May 10, 2012
Before AGEE, DAVIS, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Joseph L. Bell, Jr., BATTS, BATTS & BELL, LLP, Rocky Mount,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Albert Henry Jones appeals his eighty-four month
sentence for distribution of cocaine base and aiding and
abetting another in distribution of crack cocaine. The sole
argument that Jones raises on appeal is that his sentence is
both procedurally and substantively unreasonable. After
thoroughly examining the record and the contentions of the
parties, we affirm.
We review a sentence for reasonableness, applying an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). Jones attacks the procedural aspect of his
sentence on the ground that the district court failed to
properly implement an incremental approach when determining the
degree of its upward departure, as required by U.S. Sentencing
Guidelines Manual (“USSG”) § 4A1.3(a)(4)(B). As we have
explained, however, “Section 4A1.3’s mandate to depart
incrementally does not, of course, require a sentencing judge to
move only one level, or to explain its rejection of each and
every intervening level.” United States v. Dalton, 477 F.3d
195, 199 (4th Cir. 2007) (citations omitted). Nor must the
district court “go through a ritualistic exercise in which it
mechanically discusses each criminal history category [or
offense level] it rejects en route to the category [or offense
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level] that it selects.” Id. (citations omitted) (alterations
in original).
Further, even assuming that the district court did
fail to properly implement the required incremental analysis,
any such procedural error is harmless where, as here, an “upward
variance based on the § 3553(a) factors justifie[s] the sentence
imposed.” United States v. Rivera-Santana, 688 F.3d 95, 104
(4th Cir. 2012). See also United States v. Grubbs, 585 F.3d
793, 804 (4th Cir. 2009) (relying on district court’s discussion
of the § 3553(a) factors to affirm a sentence as a reasonable
variance); United States v. Evans, 526 F.3d 155, 165 (4th Cir.
2008) (affirming on the basis of the district court’s
application of the § 3553(a) factors where the district court
found that both the departure provisions and the § 3553(a)
factors supported its chosen sentence).
Our review of the court’s application of the § 3553(a)
factors to Jones’ circumstances persuades us that the variant
sentence imposed upon Jones was not unreasonable. Grubbs, 585
F.3d at 804-05. See Gall, 552 U.S. at 51 (in reviewing a
variance for reasonableness, an appellate court “must give due
deference to the district court’s decision that the § 3553(a)
factors, on a whole, justify the extent of the variance.”);
United States v. Pauley, 511 F.3d 468, 474 (4th Cir. 2007);
Evans, 526 F.3d at 160. Thus, at the bare minimum, any
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procedural error with respect to the district court’s departure
analysis is harmless. Rivera-Santana, 2012 WL 310871, at *7;
Evans, 526 F.3d at 165.
Jones’ assertions to the contrary notwithstanding, the
sentence imposed upon him is also substantively reasonable, in
light of “the totality of the circumstances.” Gall, 128 S. Ct.
at 597. Although Jones contends that the district court gave
short shrift to the extent of his cooperation with the
Government and overemphasized the seriousness of his criminal
record, we decline to hold that the district court’s assessment
of these considerations rendered its ultimate sentencing
decision substantively unreasonable. See Evans, 526 F.3d at
160; id. at 163-65.
Because Jones has advanced no other reason why his
sentence is either procedurally or substantively defective, we
affirm the judgment of the district court. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the material before the court and
argument will not aid the decisional process.
AFFIRMED
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