                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

                                            2
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’

                                                      3
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

                                              4
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

                                               5
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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