                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 12-6884


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

ANDREW THOMAS TYNER,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Anderson.     G. Ross Anderson, Jr., Senior
District Judge. (8:09-cr-00892-GRA-1)


Submitted:   January 9, 2013                 Decided:   April 5, 2013


Before KEENAN and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.      Judge Diaz wrote a
separate opinion concurring in the result.


James B. Loggins, Assistant Federal Public Defender, Greenville,
South Carolina; Kimberly H. Albro, Research and Writing
Specialist, Columbia, South Carolina, for Appellant. William N.
Nettles, United States Attorney, William J. Watkins, Jr.,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Andrew Thomas Tyner pleaded guilty to coercing a minor

to    engage   in    sexual         conduct,       in    violation        of     18    U.S.C.A.

§ 2251(a)      (West           Supp.       2012);        transportation           of           child

pornography, in violation of 18 U.S.C.A. § 2252A(a)(1) (West

Supp. 2012); and possession of child pornography, in violation

of 18 U.S.C.A. § 2252A(a)(5)(B) (West Supp. 2012).                               The district

court originally sentenced Tyner to 180 months of imprisonment.

The   Government      subsequently          filed        a   Fed.   R.    Crim.       P.       35(b)

motion for a sentence reduction based on Tyner’s substantial

assistance.         After      a    hearing,       the   district        court    denied        the

motion, and Tyner now appeals.                     For the reasons that follow, we

affirm.

            We review a district court’s order granting or denying

a Rule 35(b) motion de novo.                 See United States v. Clawson, 650

F.3d 530, 535 (4th Cir. 2011).                     Tyner argues that the district

court erred in considering factors other than his substantial

assistance in deciding to deny the Rule 35(b) motion.                                 While we

have previously held that a district court may not consider any

factor    other     than       substantial     assistance           in   granting          a   Rule

35(b) motion, see id. at 535-37, it is an open question in this

circuit     whether        a       court    may      consider        other       factors         in

determining that a Rule 35(b) motion should be denied.                                  Compare

United States v. Thornsbury, 670 F.3d 532, 535 n.3 (4th Cir.)

                                               2
(noting Clawson left that question open), cert. denied, 133 S.

Ct. 196 (2012), with United States v. Davis, 679 F.3d 190, 196

n.6 (4th Cir. 2012) (noting in dicta that Rule 35(b) limits

consideration to substantial assistance when deciding “whether

or not to grant” such a motion).

           However, we decline to decide in this case whether a

district   court     may    consider     other   factors      in    denying    a    Rule

35(b)   motion,      because     we   conclude     that    the      Government      has

demonstrated      that     any   error    the    district       court   might      have

committed was harmless.          See United States v. Boulware, 604 F.3d

832, 838 (4th Cir. 2010) (government may avoid reversal under

harmless error standard if “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 [correct consideration]

would   not    have      affected      the    sentence     imposed”)      (internal

quotation marks and citations omitted).

           Accordingly, we affirm the district court’s order.                        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 in the decisional process.



                                                                              AFFIRMED




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DIAZ, Circuit Judge, concurring in the result:

               Applying       harmless          error       analysis,       the     government

contends, and the majority accepts, that even if the district

court had first granted the government’s Rule 35(b) motion based

solely on substantial assistance before separately considering

the     extent       of     any    sentence          reduction,        the     court       would

nevertheless         have    refused      to     reduce      Tyner’s    sentence         because

Tyner had already received a significant sentence variance and

there    was     a    likelihood         that    he     would    reoffend.           But    this

conclusion is circular, as the act of granting a Rule 35(b)

motion is the sentence reduction, just as the rejection of a

sentence reduction is the denial of the motion.

               In my view, the proper harmless error inquiry would

instead    ask       whether      the    district       court       would    have    denied   a

sentence reduction under Rule 35(b) based solely on the merits

of    Tyner’s    assistance         to    the     government.           Because      I    cannot

confidently answer that question “yes” on this record, I find it

necessary to address what the majority acknowledges is an open

question in this circuit: whether a district court may consider

other factors in denying a Rule 35(b) motion.                           I would hold that

it can.

               Specifically, I agree with our sister circuits that a

district       court        may   properly           consider       factors       other     than

substantial      assistance         in    denying       a    Rule    35(b)    motion.        See

                                                 4
United States v. Chapman, 532 F.3d 625, 629 (7th Cir. 2008)

(“Nothing in the text of Rule 35(b) limits the factors that may

militate against granting a sentence reduction . . . .”); United

States v. Doe, 351 F.3d 929, 933 (9th Cir. 2003) (holding that a

district   court’s     consideration        of     factors    other     than   a

defendant’s substantial assistance is a proper exercise of its

discretion in denying a Rule 35(b) motion); United States v.

Manella, 86 F.3d 201, 204 (11th Cir. 1996) (“[T]he only factor

that may militate in favor of a Rule 35(b) reduction is the

defendant's substantial assistance.              Nothing in the text of the

rule   purports   to   limit   what       factors    may     militate   against

granting a Rule 35(b) reduction.”).               Accordingly, the district

court did not err in considering the variance Tyner had already

received in sentencing or Tyner’s likelihood of recidivism when

it denied the government’s Rule 35(b) motion.

           For these reasons, I concur in the result affirming

the district court’s order.




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