                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 15-4783


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

STEWARD EUGENE WHITEHEAD, JR., a/k/a Geno,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Gina M. Groh, Chief
District Judge. (3:15-cr-00020-GMG-RWT-27)


Submitted:   August 3, 2016              Decided:   September 14, 2016


Before KING, SHEDD, and THACKER, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Craig P. Erhard, LAW OFFICES OF CRAIG P. ERHARD, PLLC, Fairmont,
West Virginia, for Appellant. William J. Ihlenfeld, II, United
States Attorney, Anna Z. Krasinski, Assistant United States
Attorney, Martinsburg, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Steward Eugene Whitehead, Jr., pleaded guilty in September

2015 to one count of using of a telephone to facilitate the

distribution of heroin, in violation of 21 U.S.C. § 843(b), and

one count of aiding and abetting interstate travel in aid of

racketeering, in contravention of 18 U.S.C. §§ 2, 1952(a)(3).         In

December 2015, the district court sentenced Whitehead to thirty

months in prison on each count and directed that those terms run

consecutively.     On appeal, Whitehead challenges his sentence as

procedurally and substantively unreasonable.        We vacate and remand

for resentencing.



                                   I.

     On May 15, 2015, the grand jury in Martinsburg, West Virginia,

returned   a   163-count   indictment   against   forty-one   defendants,

including Whitehead, alleging a heroin distribution conspiracy and

related offenses.     Whitehead was named in seven counts of the

indictment, including one count of conspiracy to distribute and

possess heroin, three counts of use of a telephone to facilitate

the distribution of heroin, one count of interstate travel in aid

of racketeering, and two counts of aiding and abetting interstate

travel in aid of racketeering.      In September 2015, pursuant to a

plea agreement, Whitehead entered a plea of guilty to one count of

use of a telephone to facilitate the distribution of heroin (Count

                                    2
149) and one count of aiding and abetting interstate travel in aid

of racketeering (Count 150).

     On   October    7,    2015,    the   probation        officer    prepared    and

submitted a presentence investigation report (the “PSR”), which

recommended   a    total    offense   level        of   12,   a   criminal     history

category of VI, and a corresponding guideline range of 30 to 37

months of imprisonment. 1          The PSR recommended that, pursuant to

section 5G1.2(c) of the Sentencing Guidelines, “the sentences on

all counts of conviction shall run concurrently.”                    See J.A. 248.2

Neither Whitehead nor the government objected to the PSR.

     At Whitehead’s December 5, 2015 sentencing, the district

court adopted the PSR without change.                   Consistent with the plea

agreement, the government recommended that Whitehead be sentenced

to thirty months of imprisonment, the bottom of his advisory

Guidelines range.         The court proceeded to sentence Whitehead to

thirty    months    of    imprisonment        on   each   count,     to   be    served

consecutively, for a total of sixty months.                       In explaining its

sentence, the court observed that Whitehead’s “criminal history

reveals an uninterrupted pattern of illegal activity that was




     1 In calculating Whitehead’s recommended sentencing range,
the PSR used the 2015 edition of the Guidelines, which the district
court relied on in sentencing him.
     2 Citations herein to “J.A. ____” refer to the contents of
the Joint Appendix filed by the parties in this appeal.

                                          3
fueled by substance abuse problems,” and that he committed the

offenses of conviction while on probation.            See J.A. 204.        The

court further declared that Whitehead’s sentence “reflects the

serious   nature   of   the    offense,   and   hopefully   will   deter   the

defendant from future criminal activity once he is released from

incarceration.”     Id.       Pursuant to the government’s motion, the

court dismissed the remaining five counts of the indictment as to

Whitehead.

     In its Statement of Reasons completed in connection with the

sentencing, the district court indicated that it had adopted the

PSR without change and that Whitehead’s advisory Guidelines range

was 30 to 37 months.           The court, however, also checked a box

indicating that “[t]he sentence is within the guideline range and

the difference between the maximum and minimum of the guideline

range does not exceed 24 months.”         See J.A. 258.

     On December 15, 2015, Whitehead noted this appeal from the

district court’s judgment.        We possess jurisdiction pursuant to 18

U.S.C. § 3742 and 28 U.S.C. § 1291.        3




     3 Whitehead’s plea agreement contains a waiver of his right
to appeal his conviction or sentence “on any ground whatsoever.”
See J.A. 254. The government, however, has expressly agreed not
to seek enforcement of that waiver with respect “to the limited
issue of whether the district court erred in imposing the terms of
imprisonment on counts 149 and 150 to run consecutively.” See Br.
of Appellee 4 n.1.

                                      4
                                       II.

     We review for reasonableness a sentence imposed by a district

court.    See Gall v. United States, 552 U.S. 38, 46 (2007).                       In

undertaking such a review, “we must first ensure that the district

court committed no significant procedural error.”                        See United

States    v.   Diosdado–Star,   630     F.3d    359,    363   (4th       Cir.   2011)

(alterations and internal quotation marks omitted).                 A sentence is

procedurally     unreasonable    “if    the    court    flatly   omits       certain

steps, or if it analyzes relevant considerations in a manner

contrary to fact or law.”       See United States v. Medina-Campo, 714

F.3d 232, 234 (4th Cir. 2013).          Once we determine that a sentence

is   procedurally       reasonable,     we     “consider      the        substantive

reasonableness     of    the   sentence       imposed    under      an    abuse-of-

discretion standard.”       See United States v. Carter, 564 F.3d 325,

328 (4th Cir. 2009) (internal quotation marks omitted).



                                       III.

     On    appeal,      Whitehead   challenges         the    district      court’s

imposition of consecutive, rather than concurrent, thirty-month

sentences on a host of procedural and substantive grounds.                       His

most substantial contention is that the court committed procedural




                                        5
error by imposing consecutive sentences without considering that

the Sentencing Guidelines recommended concurrent sentences. 4

     Guidelines       section      5G1.2          outlines      the     procedure       for

sentencing   a     defendant     who    is       convicted    in    federal     court   of

multiple criminal counts.              If none of the counts of conviction

carries a statutory mandatory minimum sentence, “the court shall

determine    the    total    punishment           and   shall      impose     that   total

punishment on each such count, except to the extent otherwise

required by law.”       See USSG § 5G1.2(b).              If the total punishment

is less than or equal to the statutory maximum sentence for at

least one count of conviction, then “the sentences on all counts

shall run concurrently, except to the extent otherwise required by

law.”    Id. § 5G1.2(c).       If, however, the total punishment exceeds

the statutory maximum sentence on each count of conviction, the

court “shall” impose consecutive sentences, “but only to the extent

necessary    to    produce   a   combined          sentence     equal    to    the   total

punishment.”       Id. § 5G1.2(d).

     The Guidelines, of course, are merely advisory and are not

binding on district courts.            See United States v. Booker, 543 U.S.



     4  Although the government maintains that several of
Whitehead’s contentions are subject to review for plain error only,
it recognizes that he adequately preserved his contention that the
district court erred in failing to consider that the Guidelines
recommended concurrent sentences.       See Br. of Appellee 15
(acknowledging that “the Court may review the purported
[procedural] error for harmlessness”).

                                             6
220,   245   (2005).       Nevertheless,   they   provide   “the    essential

framework” for sentencing proceedings and “anchor the district

court’s discretion.”       See Molina-Martinez v. United States, 136 S.

Ct. 1338, 1345 (2016) (alterations and internal quotation marks

omitted).       Thus, a sentencing court “must correctly determine

whether the Guidelines recommend concurrent sentences,” and the

“[f]ailure to do so results in procedural error.”                  See United

States v. Nania, 724 F.3d 824, 830 (7th Cir. 2013).

       As the government acknowledges, the district court “did not

. . . address that § 5G1.2(c) of the Guidelines recommends that

. . . Whitehead’s sentences be served concurrently.”               See Br. of

Appellee 17.     The court’s failure to consider what the Guidelines

recommended      constitutes    procedural    error.        The    government

contends, however, that the error is harmless, because the court

“would   have    imposed    consecutive    sentences   regardless     of   the

Guidelines.”     Id. at 19.

       When a district court commits procedural error by either

failing to address the Guidelines or by incorrectly applying them,

we will deem such an error harmless when two conditions are met.

First, we must be “certain” that the defendant’s sentence would

have been the same had the court correctly applied the Guidelines.

See United States v. Gomez, 690 F.3d 194, 203 (4th Cir. 2012).

Second, we must make a “determination that the sentence would be

reasonable even if” the procedural error had not occurred.                 See

                                      7
United States v. Savillon-Matute, 636 F.3d 119, 123 (4th Cir. 2011)

(internal quotation marks omitted).

     Under these circumstances, we cannot be “certain” that the

district    court    would    have   imposed    consecutive     thirty-month

sentences had it considered the Guidelines’ recommendation of

concurrent sentences.        To support its contention to the contrary,

the government relies on the court’s analysis of the sentencing

factors enumerated in 18 U.S.C § 3553(a).             As we explained in

United States v. Montes-Flores, however, “something more than a

review by the district court of the § 3553(a) factors is needed”

for us to be “certain” that the defendant’s sentence would have

been the same.      See 736 F.3d 357, 370 (4th Cir. 2013).

     The government also directs our attention to the district

court’s    Statement   of    Reasons,   which   characterizes   Whitehead’s

sentence as being “within the guideline range.”          See J.A. 258.    As

the government observes, the Statement of Reasons suggests that

the court “believed it was imposing a within-Guidelines sentence.”

See Br. of Appellee 18.      But instead of receiving a sentence within

the advisory Guidelines range of thirty to thirty-seven months,

Whitehead was sentenced to sixty months in prison — twenty-three

months above the top of the advisory Guidelines range.

     As the Supreme Court recently explained in Molina-Martinez,

the Guidelines are “most likely to have influenced the district

court’s sentencing decision” in cases “where the court chose a

                                        8
sentence within what it believed to be the applicable Guidelines

range.”       See 136 S. Ct. at 1347.            Thus, an error in calculating

the defendant’s Guidelines range will “in most cases” exceed not

only the threshold of harmlessness, but also the higher “reasonable

probability of prejudice” standard that applies in the context of

plain      error     review.    Id.    at    1346.    Although     Molina-Martinez

involved a different procedural error than the one at issue in

this appeal, as well as a more stringent standard of review, its

reasoning applies with full force here. The fact that the district

court followed the recommendation of the Guidelines with respect

to the term of Whitehead’s sentence raises a reasonable possibility

that the court would have similarly followed the Guidelines’ advice

with       respect    to   whether    to    impose   consecutive    or   concurrent

sentences.         Accordingly, we cannot be certain that, but for the

procedural error in failing to consider Guidelines section 5G1.2,

the court would have imposed the same sentence. 5




       5
       Because we conclude that the district court committed
reversible procedural error in failing to consider that the
Guidelines recommended concurrent sentences, we do not address
whether the imposition of consecutive sentences was substantively
reasonable.

                                             9
                               IV.

     For the foregoing reasons, we vacate the judgment of the

district court and remand for resentencing.

                                              VACATED AND REMANDED




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