                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4688


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JIKEEM GABRIEL TYLER,

                Defendant - Appellant.



                            No. 14-4691


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JAKOTA RAYE BROWN,

                Defendant - Appellant.



Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:14-cr-00026-CCE-2; 1:14-cr-00026-CCE-1)


Submitted:   May 29, 2015                  Decided:   June 5, 2015


Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.


Joshua B. Howard, GAMMON, HOWARD & ZESZOTARSKI, PLLC, Raleigh,
North Carolina; Jay H. Ferguson, THOMAS, FERGUSON & MULLINS,
LLP, Durham, North Carolina, for Appellants.        Ripley Rand,
United States Attorney, Graham T. Green, Assistant United States
Attorney, Winston-Salem, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

      Jikeem        Gabriel       Tyler     and       Jakota       Raye        Brown      (together,

“Appellants”)         appeal       their     respective            48-month          and      50-month

upward-departure           sentences,          see       U.S.          Sentencing          Guidelines

Manual    § 5K2.21,        p.s.      (2013),          imposed      by     the       district      court

following      their       guilty     pleas       to     conspiracy            to    possess        with

intent to distribute less than 50 kilograms of marijuana, in

violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(d) (2012).                                          On

appeal,       Appellants          challenge           the        reasonableness            of    their

sentences.         We affirm.

      Appellants claim that their sentences are both procedurally

and   substantively           unreasonable.                 We    review        a    sentence        for

reasonableness,            applying       “a      deferential                abuse-of-discretion

standard.”          Gall     v.    United      States,           552    U.S.     38,     41     (2007);

United    States      v.     Lymas,    781      F.3d        106,       111    (4th       Cir.    2015).

“First, we must determine whether the district court committed

any procedural error, ‘such as . . . improperly calculating[]

the [Sentencing] Guidelines range, . . . selecting a sentence

based    on    clearly       erroneous         facts,        or        failing      to    adequately

explain      the    chosen        sentence—including              an     explanation          for    any

deviation from the Guidelines range.’”                             Lymas, 781 F.3d at 111-

12 (quoting Gall, 552 U.S. at 51).                          Preserved procedural errors

may be reviewed for harmlessness.                           United States v. Boulware,

604   F.3d    832,     838    (4th     Cir.       2010)      (defining           harmlessness         of

                                                  3
nonconstitutional         error).          “Only    if    we     determine      that    the

district court has not committed procedural error do we proceed

to     assess     ‘the    substantive       reasonableness         of   the      sentence

imposed.’”        Lymas, 781 F.3d at 112 (quoting Gall, 552 U.S. at

51).

       Appellants first claim that the district court procedurally

erred by failing to explain in its written statements of reasons

with the specificity required by 18 U.S.C. § 3553(c)(2) (2012),

its justifications for departing upwardly.                        Because Appellants

requested       “sentence[s]       different       than    the    one[s]      ultimately

imposed,”       they     have   preserved        their    § 3553(c)(2)        challenge.

United States v. Lynn, 592 F.3d 572, 578 (4th Cir. 2010).                              Even

assuming, without deciding, that the district court’s statements

of reasons lacked the specificity required by § 3553(c)(2), we

conclude that any error in this regard is harmless.                        Because the

district        court    entered     the     written      statements       of    reasons

postjudgment, following a lengthy explanation of reasons during

the sentencing hearing, the alleged lack of specificity cannot

be   said   to    have    had   “a   substantial         and   injurious      effect    or

influence on [Appellants’ sentences,] and we can . . . say with

. . . fair assurance[] . . . that the district court’s explicit

consideration [in its written statements of reasons] of . . .

[the factors it had already expressly and thoroughly considered

at Appellants’ sentencing hearings] would not have affected the

                                             4
sentence[s]      imposed.”          Boulware,       604     F.3d   at    838    (internal

quotation marks omitted).

        Next, Appellants claim that the district court failed to

adequately      explain       the    reasons        for     the    extent       of     their

sentencing departure.              We conclude, however, that Appellants’

arguments in support of this claim are unavailing.                               Unlike a

departure pursuant to USSG § 4A1.3, we have never held that a

§ 5K2.21, p.s., departure obligated a district court to employ

an incremental approach, see United States v. Dalton 477 F.3d

195, 199-200 (4th Cir. 2007) (describing § 4A1.3 analysis), and

we   decline     to    do    so    here.         Additionally,      and      contrary     to

Appellants’      assertions,        we     conclude    that       the   district       court

“‘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 sentences.              United States v. Diosdado-Star, 630 F.3d

359, 364 (4th Cir. 2011) (quoting Rita v. United States, 551

U.S.    338,    356    (2007)).          Further,     the    district        court’s    oral

explanations          demonstrate          that       it      accorded         Appellants

individualized        assessments        and,     thereby,    adequately        explained

the reason for any parity or disparity in their sentences.

        Brown claims that his sentence is procedurally unreasonable

because the Government failed to present any evidence supporting

application       of     a     managerial-role             adjustment        under      USSG

                                             5
§ 3B1.1(b).   Although it chose not to do so, the district court

could have relied solely on the evidence that Brown instructed

coconspirators    to   engage   in    criminal     conduct     as   a   basis   for

applying the § 3B1.1(b) upward adjustment.               See United States v.

Hamilton, 587 F.3d 1199, 1222 (10th Cir. 2009); United States v.

Rashwan, 328 F.3d 160, 166 (4th Cir. 2003).                    Relying on this

evidence, we perceive no clear error in the district court’s

application of § 3B1.1(b).            See United States v. Steffen, 741

F.3d 411, 414 (4th Cir. 2013) (stating standard of review).

     Because we conclude that the district court did not commit

significant   procedural    error,        we    turn   our   attention    to    the

substantive   reasonableness         of   the    sentences,     “tak[ing]       into

account the totality of the circumstances, including the extent

of any [deviation] from the Guidelines range.”                  Gall, 552 U.S.

at 51.     “When reviewing a departure, we consider whether the

sentencing court acted reasonably . . . with respect to the

extent of the divergence from the sentencing range.”                        United

States v. Howard, 773 F.3d 519, 529 (4th Cir. 2014) (internal

quotation marks omitted).       However, “we ‘must give due deference

to the district court’s decision that the [18 U.S.C.] § 3553(a)

[(2012)]   factors,    on   a   whole,         justify   the   extent     of     the

[divergence].’”    773 F.3d at 528 (quoting Gall, 552 U.S. at 51).

     Appellants claim that their sentences are unreasonably high

in relation to their established Guidelines ranges.                      Although

                                          6
they twice     repeat       this    claim,       Appellants   do       not    develop    the

argument beyond mere conclusory assertions and a citation to a

single authority, which they do not attempt to apply to their

appeals.     Because Appellants fail to comply with Fed. R. App. P.

28(a)(8)(A), with respect to this claim, we do not review it.

See Projects Mgmt. Co. v. Dyncorp Int’l LLC, 734 F.3d 366, 376

(4th Cir. 2013); Eriline Co. S.A. v. Johnson, 440 F.3d 648, 653

n.7 (4th Cir. 2006).

       Appellants      next         claim        that     their        sentences         are

substantively unreasonable because they exceed the high end of

the    Guidelines    ranges    that     would      have   applied       had    they     been

convicted of a dismissed count, which underlay the § 5K2.21,

p.s., departure. 1          A departure may be “based on conduct . . .

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[,] . . .

that   did   not    enter    into    the     determination        of    the    applicable

[G]uideline[s] range.”             USSG § 5K2.21, p.s.            In support of this

claim, Appellants point to principles, established in our pre-



       1
       Pursuant to plea agreements, the district court dismissed
Count 3 of the superseding indictment, which charged Appellants
with assaulting, resisting, opposing, impeding, or interfering
with a federal officer in the performance of his official
duties, in violation of 18 U.S.C. § 111(a) (2012).



                                             7
Booker 2    precedent,         appearing         to          limit   the    extent      of     upward

departures, such as those under § 5K2.21, p.s., that are based

on a defendant’s uncharged or dismissed criminal conduct.                                         See

United     States       v.    Davis,      380    F.3d         183,   193     (4th      Cir.    2004);

United States v. Terry, 142 F.3d 702, 709 (4th Cir. 1998).                                       Even

if   we    were    to       assume      that     these         principles       survived       Booker

intact, they would not prevent the district court from departing

to   the   extent       that       it    did.        Appellants’           departure     sentences

might have exceeded the limitations imposed by these principles

if the underlying conduct consisted only of the dismissed count.

However, as the district court noted, the conduct underlying the

§ 5K2.21, p.s., departures also consisted of uncharged conduct.

      Finally, Tyler claims that his sentence is substantively

unreasonable due to its near equivalence to Brown’s sentence

because     Brown,       unlike         Tyler,       was      subject      to   a     § 3B1.1    role

adjustment.            To    the     extent      Tyler         may   base       his    claim    on   a

comparison        of    his    sentence         to       a    coconspirator’s,          see    United

States v. Goff, 907 F.2d 1441, 1447 (4th Cir. 1990), superseded

on other grounds by USSG app. C amend. 508; see also United

States v. Sierra-Villegas, 774 F.3d 1093, 1103 (6th Cir. 2014),

petition for cert. filed, __ U.S.L.W. __ (U.S. Mar. 25, 2015)

(No. 14-9048), we conclude that Tyler has not shown that his and

      2
          United States v. Booker, 543 U.S. 220 (2005).



                                                     8
Brown’s situations are dissimilar enough that the parity between

their sentences is unwarranted.                   See 18 U.S.C. § 3553(a)(6);

United States v. Holt, 777 F.3d 1234, 1270 (11th Cir. 2015),

petition for cert. filed, __ U.S.L.W. __ (U.S. May 18, 2015)

(No. 14-9919); United States v. Withers, 100 F.3d 1142, 1149

(4th Cir. 1996); United States v. Hall, 977 F.2d 861, 864 (4th

Cir. 1992).

       Accordingly,         we   conclude    that    Appellants’    sentences      are

neither procedurally nor substantively unreasonable and, thus,

that       the   district    court    did   not     abuse   its   discretion.      We

therefore affirm the district court’s judgments. 3                        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




       3
       Because Tyler does not assert that the record fails to
disclose what occurred in the district court or that anything
has been misstated or omitted in the record, we deny his pro se
motion to correct the record.   See Fed. R. App. P. 10(e).    We
likewise deny his pro se motion for leave to file a supplemental
pro se brief.   See United States v. Penniegraft, 641 F.3d 566,
569 n.1 (4th Cir. 2011).



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