                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-4554


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

XAVIER VIDAL JENNETTE,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:06-cr-00147-BR-1)


Argued:   October 23, 2012               Decided:   December 6, 2012


Before GREGORY, SHEDD, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Samuel A. Forehand, LAW OFFICE OF SAMUEL A. FOREHAND,
P.A., Raleigh, North Carolina, for Appellant.       Kristine L.
Fritz, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.    ON BRIEF: 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Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     In    2006,     a    jury    convicted       Xavier      Jennette          of   identity

theft,     wire    fraud,       and   several      related          offenses,        and   the

district court sentenced him to 121 months in prison.                                Jennette

appealed,     and        we    vacated     his    sentence          and    remanded        for

resentencing.        On remand, the district court again imposed a

sentence    of    121     months.         Jennette      now    appeals          this   second

sentence.        Jennette contends that a court reporter’s delay in

producing    a    transcript       that    he    needed       for    his    first      appeal

denied his right to due process.                     He also contends that the

district court abused its discretion at resentencing by refusing

to consider certain evidence that he wanted to offer.                                Finally,

he contends that the district court committed procedural error

by misapplying the Sentencing Guidelines and failing to consider

the factors listed in 18 U.S.C. § 3553(a).                      Finding no merit in

these contentions, we affirm.



                                            I.

     Jennette’s first appeal proceeded slowly because the court

reporter responsible for producing transcripts of the trial and

sentencing       produced      them   in    piecemeal         fashion       and      did   not

produce them in total until 16 months after the deadline we had

imposed.      Once       the   transcripts       were   produced          and    the   appeal

proceeded, we vacated the sentence and remanded, finding that

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the district court had abused its discretion by denying a motion

from       Jennette’s          attorney     to        withdraw.           United      States    v.

Jennette, 387 Fed. Appx. 303 (4th Cir. 2010).

       At the resentencing, Jennette called Anthony Wallace, a co-

conspirator        who     had    testified           against    him      at   trial.         After

trial,      Wallace       had     signed    an        affidavit       recanting       his    trial

testimony      and       stating    that     Jennette          was    innocent.            However,

Wallace later told Jennette’s counsel that the affidavit was

false, essentially recanting his recantation.                                  Still, Jennette

called      Wallace       to    testify     at        the   resentencing, 1          but    Wallace

refused      to    do     so,     asserting       his       Fifth     Amendment       rights    in

response      to        each     question        he     was     asked.          Jennette       then

unsuccessfully sought to introduce evidence that Wallace’s trial

testimony      implicating          Jennette          was     false    and     his    post-trial

affidavit exonerating Jennette was true.                               Eventually, because

the district court decided that Wallace was not credible, it

disregarded all of his testimony.

       The district court then again sentenced Jennette to 121

months.           The    new     sentence        reflected          the    district        court’s

application of the Sentencing Guidelines, including enhancements

for Jennette’s leadership role in criminal activity involving

       1
       Jennette asserted that this testimony could have rebutted
evidence the government offered in favor of enhancements and an
upward departure.



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five     or    more       individuals,       U.S.S.G.           §     3B1.1(a);     abusing    a

position of trust, U.S.S.G. § 3B1.3; and                               obstructing justice.

U.S.S.G. § 3C1.1.               Additionally, the new sentence reflected an

upward departure based upon the district court’s finding that

the    offense       level      determined     by    the     Guidelines         substantially

underestimated            the    seriousness        of    the       offense.        U.S.S.G.   §

2B1.1, Application Notes 19.                 The district court also noted that

“in    the    alternative,         the   Court       would          impose    the   exact   same

sentence as a variance under 18 U.S.C. § 3553(a).”                              S.J.A. 1349.



                                               II.

        We first address Jennette’s contention that the delay in

transcript production during his first appeal denied him due

process.           We review claims of due process violations de novo.

United States v. Shealy, 641 F.3d 627, 633 (4th Cir. 2011).

        In determining whether delay in processing an appeal denies

a criminal defendant due process, we consider the “[l]ength of

delay, the reason for the delay, the defendant’s assertion of

his right, and prejudice to the defendant.”                                  United States v.

Johnson, 732 F.2d 379, 381 (4th Cir. 1984)(quoting Barker v.

Wingo, 407 U.S. 514, 530 (1972)).                        Here, we consider the fourth

factor, prejudice, to be dispositive because Jennette suffered

none.         We    first       note   that,    because         Jennette       is   serving     a

sentence       for    a    conviction      that      is    not        being    appealed,      and

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because we affirm the totality of the sentence imposed by the

district court—the same sentence the district court imposed in

the first sentencing—the delay in obtaining transcripts did not

add to Jennette’s prison sentence.              Jennette also claims that

Wallace may not have recanted his post-trial affidavit had the

appellate    process     run    faster    and   the   resentencing      occurred

earlier.     However, there is nothing in the record that allows a

reasonable inference that it was the passage of time, rather

than some other factor, which motivated Wallace to recant his

affidavit.     Jennette’s assertion otherwise is mere speculation,

which is insufficient to provide a factual basis for a claim of

prejudice.

     Moreover, we reject Jennette’s assertion that the decision

of a witness to assert his Fifth Amendment rights is the type of

prejudice which has been found to support a due process claim.

The Supreme Court has observed that a delay may cause prejudice

if a witness dies or disappears during the delay or is unable to

recall accurately the events of the distant past.                    Barker, 407

U.S. at 532.      Here, Wallace was available to testify at the

resentencing, and there is no indication that his memory was

impaired; he simply chose to assert his Fifth Amendment rights.

Therefore,    Jennette    was    not     prejudiced   in   a   way   that   would

support a due process claim.



                                         5
                                         III.

       We   next    address     Jennette’s      contention      that    the    district

court erred by refusing to admit evidence that he wanted to

offer for the purpose of showing which of Wallace’s conflicting

stories was true.          We review this evidentiary ruling for abuse

of discretion.        United States v. Johnson, 617 F.3d 286, 292 (4th

Cir. 2010).

       At resentencing, the district court was aware of Wallace’s

trial testimony, his affidavit recanting that testimony, and his

recantation of that recantation.                  The district court properly

considered Wallace’s credibility and then determined that his

credibility was so lacking that the court would not consider any

of Wallace’s testimony.           See United States v. McKenzie-Gude, 671

F.3d   452,    463    (4th    Cir.     2011)    (noting      the   great      deference

afforded      the    district    court’s       credibility      determinations      at

sentencing).          Thus,     the    district      court   did    not    abuse   its

discretion     by    refusing     to    rely    on    Wallace      or   any    evidence

offered to support or refute any version of Wallace’s testimony,

or to prolong the hearing to allow the presentation of any other

evidence concerning Wallace’s completely discounted testimony.



                                          IV.

       We   turn    next   to    Jennette’s       challenges       to   the   district

court’s application of the Sentencing Guidelines and 18 U.S.C. §

                                           6
3553(a).             In    reviewing        any    sentence,          “whether      inside,      just

outside,        or    significantly           outside       the       Guidelines      range,”      we

apply      a    “deferential            abuse-of-discretion             standard.”         Gall    v.

United States, 552 U.S. 38, 41 (2007).                                  Ordinarily, we first

“ensure        that        the    district         court        committed      no     significant

procedural error.” Id. at 51. “If, and only if, we find the

sentence         procedurally               reasonable          can     we     ‘consider          the

substantive           reasonableness          of     the    sentence         imposed      under    an

abuse-of-discretion               standard.’”            United    States      v.    Carter,      564

F.3d 325, 328 (4th Cir. 2009) (quoting Gall, 552 U.S. at 51).

      In       imposing       a    criminal        sentence,        a   district      court      must

“apply         the        relevant      §     3553(a)       factors       to        the    specific

circumstances of the case before it.”                             Carter, 564 F.3d at 328.

However,        “this       is    not    to    say       that    the    district      court      must

robotically tick through § 3553(a)’s every subsection,”                                     U.S. v.

Johnson, 445 F.3d 339, 345 (4th Cir. 2006), as long as the

district court makes an “individualized assessment based on the

facts presented.”                Gall, 552 U.S. at 50.

      Here, the district judge had presided over Jennette’s five-

day trial, his initial two-day sentencing hearing, and the two-

day     resentencing.                Throughout          the      sentencing        process,      the

district        court        demonstrated           intimate          familiarity         with    the

details of the case, even correcting Jennette’s counsel when he

made an assertion that was inconsistent with the presentence

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report.     At both sentencing hearings, the district court heard

extensive arguments on the § 3553(a) factors and plainly gave

Jennette the individualized assessment required by Gall.            For

example, the district court noted that Jennette’s crime imposed

significant non-monetary harm on his victims and that Jennette

had lied under oath.     Thus, we conclude that Jennette received

the individualized sentence to which he is entitled.

      Jennette also challenges the district court’s application

of the Sentencing Guidelines, specifically contending that it

erred in imposing enhancements and an upward departure.         Even if

the   district   court   had   erred   in   applying   the   Sentencing

Guidelines, the errors would be harmless.         As we held in United

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

errors in applying the Sentencing Guidelines are harmless where,

even if the district court had applied the Guidelines properly,

it (1) would have imposed the same sentence and (2) the sentence

would have been reasonable.        Here, the district court stated

that it would have imposed the same sentence regardless of the

Guidelines calculation, and Jennette has not asserted that the

sentence was substantively unreasonable.       Thus, any error in the

district    court’s   Guidelines    calculation     would    have   been

harmless.




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                              V.

     For the foregoing reasons, we affirm the sentence imposed

by the district court.

                                                      AFFIRMED




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