                                     UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 18-4706


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

JAMES EDWARD WHITAKER, a/k/a Mo,

                     Defendant - Appellant.


Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. James C. Dever III, District Judge. (5:17-cr-00374-D-1)


Submitted: May 30, 2019                                           Decided: June 25, 2019


Before KING and RICHARDSON, Circuit Judges, and HAMILTON, Senior Circuit
Judge.


Affirmed by unpublished per curiam opinion.


G. Alan DuBois, Federal Public Defender, Eric Joseph Brignac, Chief Appellate
Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina,
for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker,
Assistant United States Attorney, Chad E. Rhoades, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      James Edward Whitaker pleaded guilty pursuant to a plea agreement to possession

with intent to distribute a quantity of cocaine base and a quantity of marijuana, in

violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (2012), and to possession of a firearm in

furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i)

(2012).   The district court sentenced Whitaker to 24 months’ imprisonment for the

controlled substance charge and 60 months’ imprisonment for the firearm charge, to be

served consecutively, for a total of 84 months’ imprisonment. On appeal, Whitaker

contends that the district court erred in upwardly departing and that his sentence is

substantively unreasonable. The Government counters that any error is harmless because

the district court announced an alternate variant sentence. We affirm the district court’s

judgment.

      Rather than evaluating the merits of a defendant’s challenge to the calculation of

the Sentencing Guidelines range, “we may proceed directly to an assumed error

harmlessness inquiry.” United States v. Gomez-Jimenez, 750 F.3d 370, 382 (4th Cir.

2014) (internal quotation marks omitted).       In other words, we may assume that a

Guidelines error occurred and “proceed to examine whether the error affected the

sentence imposed.” United States v. McDonald, 850 F.3d 640, 643 (4th Cir. 2017)

(internal quotation marks omitted).

      To apply this assumed error harmlessness inquiry we require (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.

                                            2
Id. (internal quotation marks omitted). The error will be deemed harmless only when we

are certain that these requirements are met. United States v. Gomez, 690 F.3d 194, 203

(4th Cir. 2012).       Here, the first inquiry is satisfied because the “district

court . . . expressly stated in a separate and particular explanation that it would have

reached the same result even if it had miscalculated the Guidelines range.” Gomez-

Jiminez, 750 F.3d at 383.

       As to the second inquiry, whether Whitaker’s above-Guidelines range sentence

would be substantively reasonable, “we consider whether the sentencing court acted

reasonably both with respect to its decision to impose such a sentence and with respect to

the extent of the divergence from the sentencing range.” United States v. Washington,

743 F.3d 938, 944 (4th Cir. 2014) (internal quotation marks omitted). “While a district

court’s explanation for the sentence must support the degree of the variance, it need not

find extraordinary circumstances to justify a deviation from the Guidelines.” United

States v. Spencer, 848 F.3d 324, 327 (4th Cir. 2017) (citation and internal quotation

marks omitted). Because our review of this issue is ultimately for an abuse of discretion,

we accord “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 variance.” United States v. Zuk, 874

F.3d 398, 409 (4th Cir. 2017) (internal quotation marks omitted). Even if “we might

reasonably conclude that a different sentence is appropriate, that conclusion, standing

alone, is an insufficient basis to vacate the district court’s chosen sentence.”         Id.

(alterations and internal quotation marks omitted).



                                             3
      We conclude that Whitaker’s sentence is reasonable. The district court discussed

the § 3553(a) factors, highlighting the nature and circumstances of Whitaker’s offenses

and also his extensive and serious criminal history, which included convictions on two

counts of voluntary manslaughter, of being a habitual felon, and of breaking and entering

with intent to terrorize or injure. The district court further emphasized the need to

incapacitate Whitaker and to deter him from future criminal activity. The factors cited by

the court and the reasons given for the chosen sentence sufficiently support the court’s

modest increase above the advisory Guidelines range.

      Accordingly, we 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




                                            4
