UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4827
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTOINE URICK LILLY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:10-cr-00320-BO-2)
Submitted: April 18, 2012 Decided: June 6, 2012
Before KING, DUNCAN, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
R. Clarke Speaks, SPEAKS LAW FIRM, PC, Wilmington, North
Carolina, for Appellant. Thomas G. Walker, 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Unpublished opinions are not binding precedent in this circuit.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:
Antoine Urick Lilly pleaded guilty, pursuant to a
written plea agreement, to one count of participating in a
conspiracy to distribute and possess with intent to distribute
more than fifty grams of cocaine base in violation of 21 U.S.C.
§ 846 (2006). The district court departed downward from the
advisory Guidelines sentencing range based on a substantial
assistance motion by the Government and imposed a custodial
sentence of 150 months followed by five years of supervised
release. We affirm.
On appeal, Lilly’s counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), in which he stated
that he could find no meritorious issues for appeal. Counsel
sought our review of the district court’s finding that Lilly
should not be sentenced pursuant to the Fair Sentencing Act of
2010 (“FSA”). Finding that issue non-frivolous, we directed
supplemental briefing on that issue as well as on the issue of
whether any error in the non-application of the FSA was
harmless.
Although Lilly’s offense conduct pre-dated the
enactment of the FSA, both parties sought the application of the
FSA at Lilly’s sentencing because the sentencing took place
after the effective date of the Act. The district court,
however, found that the FSA did not apply. Assuming without
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deciding that the district court erred in this respect, ∗ the
result of the non-application of the FSA was that the district
court calculated a ten-year statutory minimum rather than a
five-year statutory minimum and the district court applied a
Guidelines range of 262 to 327 months rather than a Guidelines
range of 188 to 235 months.
Both parties requested that the district court base
its substantial assistance departure off of the FSA Guidelines
range of 188 to 235 months. The Government suggested a sentence
of 150 months, which represented an approximately twenty percent
departure from the low end of that range. Lilly did not request
a specific custodial sentence. Although it declined to apply
the FSA — and therefore found Lilly’s Guidelines range to be 262
to 327 months — the district court ultimately sentenced Lilly to
150 months’ imprisonment.
We review a sentence under a deferential abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). We first inspect for procedural reasonableness by
ensuring that the district court committed no significant
procedural errors, such as improperly calculating the Guidelines
∗
We have not yet passed on the FSA’s applicability to
convictions involving pre-enactment conduct but post-enactment
sentencing. See United States v. Bullard, 645 F.3d 237, 248 n.5
(4th Cir.), cert. denied, 132 S. Ct. 356 (2011).
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range. United States v. Boulware, 604 F.3d 832, 837-38 (4th
Cir. 2010). Assuming that the district court improperly
calculated Lilly’s Guidelines range, it committed procedural
error. Such procedural error is subject to review for
harmlessness. See United States v. Savillon-Matute, 636 F.3d
119, 123-24 (4th Cir.), cert. denied, 132 S. Ct. 454 (2011). A
finding of harmlessness 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. Id.
at 123 (citing United States v. Keene, 470 F.3d 1347, 1349 (11th
Cir. 2006)). To meet the first inquiry, the record need not
contain a specific statement by the district court that it would
have imposed the same sentence regardless of the Guidelines
calculation. Id. at 124.
We find that the harmlessness inquiry is met here.
The statutory minimum appears to have played no role in the
imposition of the district court’s sentence. Furthermore, the
only reasonable inference from the record is that the district
court concluded that a sentence of 150 months’ imprisonment was
proper regardless of whether the FSA applied to Lilly. The
second harmless inquiry is easily met: had the district court
adopted Lilly’s proffered Guidelines range of 188 to 235 months,
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the 150-month sentence would still constitute a meaningful
departure from the Guidelines range and thus would be no less
reasonable. Thus, any error on the part of the district court
in failing to apply the FSA to Lilly’s sentencing was harmless
because it did not affect the sentence that Lilly actually
received.
In accordance with Anders, we have reviewed the entire
record and have found no meritorious issues for appeal.
Accordingly, we affirm the district court’s judgment. This
court requires that counsel inform Lilly, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Lilly requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Lilly. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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