                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 13-4337


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOEL DEVON ARTIS,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   James C. Dever III,
Chief District Judge. (5:12-cr-00091-D-1)


Submitted:   January 27, 2014              Decided:   February 12, 2014


Before DAVIS, KEENAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


C. Scott Holmes, BROCK, PAYNE & MEECE, P.A., Durham, 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Unpublished opinions are not binding precedent in this circuit.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:

            Joel           Devon      Artis    appeals          the   120-month           sentence

imposed    after        he     pled    guilty       to    possession         with       intent    to

distribute a quantity of marijuana and a quantity of cocaine, in

violation of 21 U.S.C. § 841(a)(1) (2012).                             The district court

departed upward pursuant to U.S. Sentencing Guidelines Manual

(USSG) § 5K2.21 (2011), based on Artis’s conduct in shooting an

assailant during a drug transaction that became an attempted

robbery and continuing to fire a handgun during a struggle with

the    assailant.             On    appeal,     Artis       argues     that       the     district

court’s    use        of     this     conduct       to    enhance      his       offense       level

pursuant        to     USSG    § 2D1.1(b)(1)             (possession        of     a     dangerous

weapon) and USSG § 2D1.1(b)(2) (use of violence), and also to

support     an        upward       departure        under       § 5K2.21      for        uncharged

conduct, amounted to impermissible double counting.                                We affirm.

            This           court    reviews     a     sentence        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 evaluating procedural reasonableness,

we consider whether the district court properly calculated the

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defendant’s       advisory     Guidelines          range,    gave    the    parties     an

opportunity to argue for an appropriate sentence, considered the

18   U.S.C.      § 3553(a)      (2012)        factors,       selected       a    sentence

supported by the record, and sufficiently explained the selected

sentence.      Gall, 552 U.S. at 49-51.

            In     reviewing     any        sentence       outside    the       Guidelines

range,   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’ arguments and has a reasoned basis”

for its decision.          United States v. Diosdado-Star, 630 F.3d 359,

364 (4th Cir. 2011).            If the sentence is free of procedural

error,   the     court     reviews     it    for     substantive      reasonableness,

taking into account the totality of the circumstances.                              Gall,

552 U.S. at 51.

            Section 5K2.21 of the Guidelines provides that

     The court may depart upward to reflect the actual
     seriousness of the offense based on conduct (1)
     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; and (2) that did
     not enter into the determination of the applicable
     guideline range.

USSG § 5K2.21, p.s.          “Double counting occurs when a provision of

the Guidelines is applied to increase punishment on the basis of


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a consideration that had been accounted for by application of

another Guideline provision or by application of a statute.”

United States v. Reevey, 364 F.3d 151, 158 (4th Cir. 2004).

Unless expressly prohibited by the Guidelines, double counting

is permitted.    Id.

            Even if we assume that the district court erred by

impermissibly    double    counting       the    conduct     in   question,   a

procedural sentencing error is harmless where this court has

“(1) knowledge that the district court would have reached the

same result even if it had decided the [G]uidelines issue the

other way, and (2) a determination that the sentence would be

reasonable even if the [G]uidelines issue had been decided in

the defendant’s favor.”      United States v. Savillon-Matute, 636

F.3d   119,   123   (4th   Cir.   2011)         (internal    quotation   marks

omitted).     The district court in this case clearly stated that

it would impose the same sentence as an upward variance based on

its consideration of the § 3553(a) factors.                 Before the upward

departure, Artis’s sentencing range was twenty-seven to thirty-

three months of imprisonment, and the court’s 120-month sentence

is a variance of 263 percent.      Our review of the record leads us

to conclude that the serious nature of Artis’s conduct, which

was thoroughly described by the district court, demonstrates the

need for the sentence to reflect the seriousness of the offense,

the need to protect the public by incapacitating Artis, the need

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for deterrence, and the need to impose just punishment.              The

district   court’s   choice     of   an   alternative   upward   variant

sentence was reasonable.

           In light of the district court’s consideration of the

parties’ arguments and the § 3553(a) sentencing factors, and its

thorough articulation of reasons warranting the imposition of an

upward variant sentence, we find no abuse of discretion in the

district court’s determination of the extent of the variance.

United States v. Hargrove, 701 F.3d 156, 163-64 (4th Cir. 2012)

(affirming variance from zero-to-six-month Guidelines range to

sixty-month sentence), cert. denied, 133 S. Ct. 2403 (2013);

Diosdado-Star, 630 F.3d at 366-67 (affirming variance sentence

six years greater than Guidelines range because sentence was

based on the district court’s examination of relevant § 3553(a)

factors); see also United States v. Angle, 598 F.3d 352, 359

(7th Cir. 2010) (“All that matters is that the sentence imposed

be reasonable in relation to the ‘package’ of reasons given by

the court.”).   Artis’s sentence is reasonable.

           Accordingly,    we   affirm.      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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