                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 12-4853


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

DEMECO LAMONT RICHARDSON,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Louise W. Flanagan,
District Judge. (4:11-cr-00124-FL-1)


Argued:   September 20, 2013             Decided:   October 11, 2013


Before MOTZ, SHEDD, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Larry Constantine Economos, ECONOMOS LAW FIRM, PLLC,
Cary, North Carolina, for Appellant. Yvonne Victoria Watford-
McKinney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal
Public Defender, G. Alan DuBois, Assistant Federal Public
Defender, James E. Todd, Jr., Research and Writing Attorney,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina,
for Appellant. Thomas G. Walker, United States Attorney,
Jennifer P. May-Parker, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

       Demeco      Lamont        Richardson             pled    guilty        without       a    plea

agreement to possessing crack cocaine with intent to distribute

and possessing a firearm in furtherance of a drug trafficking

crime. See 18 U.S.C. §§ 841(a)(1) and 924(c). The district court

sentenced Richardson to 151 months for the drug crime and 60

months (to run consecutively) for the firearm crime. 1 In doing

so, the court first treated Richardson as a de facto career

offender      under      U.S.S.G.        §    4B1.3      and    departed       upward       from   an

advisory guidelines range of 33-41 months to a range of 151-188

months. After announcing the 211-month sentence based on this

upward      departure,       the      court         stated      that       “[s]eparately”          the

factors      set   forth     in      18      U.S.C.      §     3553(a)       justify       the   same

sentence. J.A. 52. Richardson now appeals. We affirm.

       “Federal         sentencing        law      requires          the   district        judge   in

every case to impose ‘a sentence sufficient, but not greater

than       necessary,      to       comply         with’       the     purposes       of    federal

sentencing,        in    light      of       the   Guidelines          and    other    §    3553(a)

factors.” Freeman v. United States, 131 S. Ct. 2685, 2692 (2011)

(quoting      18   U.S.C.       §    3553(a)).          Under        the   current     sentencing

regime, “district courts may impose sentences within statutory


       1
       The 60-month sentence for the drug crime is statutorily
required to run consecutively.



                                                    3
limits based on appropriate consideration of all of the factors

listed        in     §      3553(a),     subject           to     appellate       review    for

‘reasonableness.’” Pepper v. United States, 131 S. Ct. 1229,

1241        (2011).         “Reasonableness            review      has     procedural       and

substantive components.” United States v. Mendoza–Mendoza, 597

F.3d        212,     216    (4th     Cir.     2010).       “Procedural        reasonableness

evaluates the method used to determine a defendant’s sentence. .

.   .   Substantive          reasonableness           examines     the    totality    of    the

circumstances to see whether the sentencing court abused its

discretion in concluding that the sentence it chose satisfied

the standards set forth in § 3553(a).” Id.

        In his opening appellate brief, Richardson challenges his

sentence only on one ground, arguing that the district court

erroneously          treated       him   as   a       de   facto    career     offender     and

departed           upward     from    the     33-41        month    advisory       range.    In

response,          the     government    contends          that    we    should   affirm    the

sentence because the court properly sentenced Richardson as a de

facto career offender and, alternatively, the court’s separate

variance sentence is reasonable. 2 We need not decide whether the


        2
        “The terms ‘variance’ and ‘departure’ describe two
distinct sentencing options available to a sentencing court.”
United States v. Rivera-Santana, 668 F.3d 95, 100 n.6 (4th
Cir.), cert. denied, 133 S.Ct. 274 (2012). A departure sentence
is imposed under the framework set out in the sentencing
guidelines, but a variance sentence is considered to be “a non-
Guidelines sentence” that is nevertheless justified under the
(Continued)
                                                  4
court   properly   departed    upward      using    the    de   facto   career

offender method because we agree with the government that the

alternate variance sentence is reasonable.

     In United States v. Evans, 526 F.3d 155, 165 (4th Cir.

2008) (emphasis in original), we explained that “[w]hen . . . a

district court offers two or more independent rationales for its

[sentencing]    deviation,    an   appellate       court   cannot   hold   the

sentence unreasonable if the appellate court finds fault with

just one of these rationales.” Applying that principle to the

facts of that case, we noted that the district court imposed the

challenged     sentence   using     both     the     guidelines     departure

provisions and the § 3553(a) factors, but the appellant argued

on appeal only that the departure was improper. Affirming the

sentence, we stated:

     Although Evans challenges — at length — the court’s
     analysis of the Guidelines departure provisions, he
     offers no argument that application of the § 3553(a)
     factors does not justify his sentence. As explained
     above, the record provides abundant support for the
     district court’s conclusion that the § 3553(a) factors
     support the sentence. Accordingly, even assuming the
     district court erred in applying the Guideline[s]
     departure provisions, Evans’ sentence, which is well-
     justified by § 3553(a) factors, is reasonable.




sentencing factors set forth in § 3553(a). Id. Arguably,
Richardson has waived his right to challenge the variance
sentence. See United States v. Hudson, 673 F.3d 263, 268 (4th
Cir.), cert. denied, 133 S.Ct. 207 (2012) (issues not raised in
opening brief are waived).


                                     5
Id.; see also Rivera-Santana, 668 F.3d at 104 (in affirming the

sentence, we held that even if the district court erroneously

departed upward from the advisory guideline range, the asserted

departure error was harmless “because the upward variance based

on   the    §   3553(a)       factors    justified        the    sentence      imposed”);

United     States      v.    Grubbs,    585   F.3d   793,       804   (4th    Cir.    2009)

(holding that even if the district court erred in its departure

analysis,       “the    resulting      sentence      is   procedurally         reasonable

because the district court adequately explained its sentence on

alternative grounds supporting a variance sentence, by reference

to the . . . § 3553(a) factors”). 3 The same reasoning applies

here.

      The record establishes that Richardson has a significant

prior      criminal         history,    which     includes       eight       felony   drug

convictions and multiple periods of incarceration. During the

sentencing hearing, the district court expressly noted, among

other things, Richardson’s “very troubling criminal history” and

his failure to learn “from [his] own troubles with the law.”

      3
       See also United States v. Hargrove, 701 F.3d 156 (4th Cir.
2012), cert. denied, 133 S. Ct. 2403 (2013); United States v.
Savillon-Matute, 636 F.3d 119 (4th Cir.), cert. denied, 132
S.Ct. 454 (2011). In both cases, we applied the “assumed error
harmlessness inquiry” and affirmed sentences without considering
the merits of the claimed procedural sentencing errors because
the record established that the district courts would have
reached the same result, which was reasonable, regardless of the
errors.



                                              6
J.A. 42-43. 4 The court also found that Richardson was a gang

member     who   had   “no   significant    work   history”   and   that   “his

actions over an extensive period of time” demonstrated that he

had “absolutely no intention of changing his ways.” J.A. 42-43.

Further, the court observed that Richardson “has been emboldened

by numerous prior periods of incarceration, and his treatment in

the state system.” J.A. 51. Explaining the alternate § 3553(a)-

based sentence, the district court stated:

      [C]onsidering the factors set forth in [§] 3553, the
      need to protect the public from the great harm created
      by drug dealing, the need to discourage this type of
      conduct, the need to promote respect for the law,
      which is so obviously lacking, and the need to provide
      treatment -- all of these factors which reflect
      specifically on [Richardson’s] background and . . .
      history and the offenses at [issue] today, justifies
      and warrants the same sentence of which [the court
      has] spoken -- a total term of incarceration of 211
      months.

J.A. 52.

      Giving     due    deference     to    the    district   court’s      broad

sentencing decision, as we must, Gall v. United States, 552 U.S.

38,   51    (2007),    we    cannot   say   that   the   upward   variance   is

unreasonable. Thus, even if, as Richardson argues, the court


      4
       Although we need not determine whether the district court
properly designated Richardson as a de facto career offender
under the guidelines, it is nonetheless notable for purposes of
the upward variance that the court viewed Richardson’s criminal
record as being “consistent with . . . that of a career
offender.” J.A. 51.



                                        7
incorrectly treated him as a de facto career offender under §

4B1.3, that error would be harmless “because the upward variance

based on the § 3553(a) factors justified the sentence imposed.”

Rivera-Santana,   668   F.3d   at   104.   Accordingly,   we   affirm   the

sentence.

                                                                 AFFIRMED




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