UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4805
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARK ANTHONY BOWENS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:10-cr-00225-RJC-1)
Submitted: May 30, 2013 Decided: June 10, 2013
Before AGEE, DAVIS, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Henderson Hill, Executive Director, Joshua B. Carpenter, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, Asheville, North Carolina,
for Appellant. Anne M. Tompkins, United States Attorney,
Melissa L. Rikard, Assistant United States Attorney, Charlotte,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mark Anthony Bowens (Bowens) pled guilty to possession
of a firearm by a convicted felon in violation of 18 U.S.C.A.
§§ 922(g)(1), 924(e) (West 2000 & Supp. 2013). The district
court varied upward from the armed career criminal Guidelines
range, see U.S. Sentencing Guidelines Manual § 4B1.4 (2011), and
imposed a sentence of 264 months’ imprisonment. Bowens appeals
his sentence, contending that the district court committed
procedural and substantive error in sentencing him. We affirm.
On the evening of January 17, 2010, Bowens was asked
to leave a bar in Charlotte, North Carolina. He returned a
short time later armed with a shotgun and a handgun and
accompanied by his cousin, Rodney Bowens, who had a handgun.
Bowens went into the bar and shot a man there. The bouncer,
William Boyd, pushed Bowens and his cousin outside, where they
struggled. Both Rodney and Mark Bowens pointed guns at Boyd,
who was able to move the shotgun aside; he was shot in the leg
instead of the stomach. When the bar owner, Roosevelt Hinton,
came outside armed with his own gun, Bowens aimed at him.
Hinton shot Bowens in the stomach and then in the head. Rodney
Bowens ran away. Bowens suffered some permanent injuries,
including the loss of his right eye.
Bowens had two prior convictions for drug trafficking
and a second-degree murder conviction, which qualified him for
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sentencing as an armed career criminal. See 18 U.S.C.A.
§ 924(e); USSG § 4B1.4. His advisory Guidelines range was 188-
235 months. The district court determined that an upward
variance to a sentence of 264 months was necessary because the
armed career criminal sentence was insufficient to take into
account “the seriousness of the past criminal activity and the
likelihood that Mr. Bowens would engage in future criminal
activity[.]” The court decided that, in light of Bowens’
criminal history and because of the “degree of violence”
committed by Bowens in the current offense, “the protective
function of the court” was “paramount” in its sentencing
decision.
We review sentences for procedural and substantive
reasonableness under an abuse of discretion standard. Gall v.
United States, 552 U.S. 38, 51 (2007). The same standard
applies whether the sentence is “inside, just outside, or
significantly outside the Guidelines range.” United States v.
Rivera-Santana, 668 F.3d 95, 100-01 (4th Cir.) (internal
citation and quotation marks omitted), cert. denied, 133 S. Ct.
274 (2012). In reviewing any variance, the appellate court must
give due deference to the sentencing court’s decision because it
has “flexibility in fashioning a sentence outside of the
Guidelines range,” and need only “set forth enough to satisfy
the appellate court that it has considered the parties’
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arguments and has a reasoned basis” for its decision. United
States v. Diosdado-Star, 630 F.3d 359, 364 (4th Cir. 2011),
(citing Gall, 552 U.S. at 56); see also United States v. Carter,
564 F.3d 325, 328 (4th Cir. 2009) (sentencing court “must make
an individualized assessment based on the facts presented”)
(citation and emphasis omitted).
Bowens contends that the district court procedurally
erred by failing to address his “substantial” argument for a
sentence within the Guidelines range because his advanced age
and his expected participation in programs available through the
Bureau of Prisons (BOP) would reduce the likelihood that he
would commit further crimes upon his release. However, in the
district court, Bowens did not make this argument as cogently as
he suggests here. In his sentencing memorandum, he stated that
educational, vocational, and rehabilitative training provided by
the BOP “should diminish the likelihood that he will reoffend in
the future.” At the sentencing hearing, defense counsel
mentioned that Bowens would be over fifty years old at his
release. To the extent that the training-and-age argument was
presented to the district court, we conclude that the district
court considered and implicitly rejected it as a sufficient
reason to impose a within-Guidelines sentence.
Even if the court’s failure to specifically address
Bowens’ age and opportunities for training in prison before
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imposing sentence rendered its explanation for the sentence
insufficient, any error was harmless under United States v.
Lynn, 592 F.3d 572 (4th Cir. 2010). Under harmless error
review, the government may avoid reversal if the error “did not
have a substantial and injurious effect or influence on the”
result and “we can [ ] say with . . . fair assurance, . . . that
the district court’s explicit consideration of [the defendant’s]
arguments would not have affected the sentence imposed.” 592
F.3d at 585 (internal citations and quotation marks omitted).
Here, the district court reviewed Bowens’ criminal history and
the nature and circumstances of the offense, and explained that
its desire to protect the public from further crimes by Bowens
was its principal reason for imposing an above-Guidelines
sentence. The record does not suggest that the court would have
imposed a different sentence if it had addressed Bowens’ age on
release or his training prospects directly, nor that the court
would impose a different sentence on remand, if directed to
resentence Bowens and address these factors directly.
Bowens also asserts that substantive error occurred in
that the variance resulted in a greater than necessary sentence
because (1) the armed career criminal Guidelines sentence would
adequately account for the violent nature of his current offense
and his criminal history, and (2) the district court failed to
consider that Bowens’ age at release and training in prison
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would obviate his likelihood of reoffending and make deterrence
or protection of the public a lesser concern.
However, the district court assessed these factors
differently. Bowens had committed murder in the past and, in
the course of the instant offense, he shot two people and tried
to shoot a third. The court concluded that protection of the
public was a sufficient concern that an upward variance was
warranted. The district court need not identify “extraordinary
circumstances” to justify an upward variance, even when the
variance is a major one. Diosdado-Star, 630 F.3d at 366
(internal quotation and citation omitted). We conclude that the
district court adequately explained its decision to vary and did
not abuse its discretion by varying upward by twenty-nine
months.
We therefore affirm the district court’s judgment. 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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