                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-4215


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

KENDALL LADELL BLUE,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Dever III,
Chief District Judge. (7:11-cr-00135-D-1)


Argued:   December 10, 2014                 Decided:   March 13, 2015


Before SHEDD, DIAZ, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Robert Daniel Boyce, NEXSEN PRUET, Raleigh, North
Carolina, for Appellant.   Phillip Anthony Rubin, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
ON BRIEF: Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Joshua L. Rogers, Assistant United States Attorneys,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       In    2010,        an     informant          purchased        crack     cocaine      from

Appellant–Defendant Kendall Blue on three occasions.                                  Blue was

then   indicted      on        four    counts       of    knowingly     and    intentionally

distributing        and    possessing             crack    cocaine     and    two    counts    of

using a firearm in furtherance of those drug crimes.                                    A jury

later found Blue guilty of the drug charges, but acquitted him

on the firearms charges.

       On appeal, Blue challenges two evidentiary rulings: (i) the

denial      of    his     motion           to     suppress      evidence,      and    (ii) the

exclusion of the informant’s prior drug convictions, which Blue

offered     for   impeachment              purposes.         Blue    also    challenges       his

sentence, contending that the district court erred in imposing

two sentencing enhancements and an upward departure.                                   For the

reasons set forth below, we find these arguments are without

merit.       Accordingly,             we        affirm    the   district      court    in     all

respects.



                                                   I.

                                                   A.

       In   2010,    the       Bureau        of    Alcohol,      Tobacco,     Firearms,       and

Explosives (ATF) and the Robeson County Sheriff’s Department in

Lumberton,        North         Carolina          initiated       an    investigation         of

Appellant–Defendant Kendall Blue.                         During the investigation, the

                                                    2
ATF used a confidential informant—a friend of Blue’s who had

purchased drugs from him in the past—to make three controlled

purchases of crack cocaine from Blue.

     According to testimony at trial, Blue would occasionally

(but not always) carry a gun while selling drugs.               For example,

the informant testified that Blue had a handgun in a holster on

his hip during the second purchase.            At the ATF’s request, the

informant also asked to purchase a gun from Blue during the

second purchase.       Blue stated he could get the informant a gun,

but he did not have one for sale at that time.

     During the third purchase, the informant asked Blue what

kind of gun he carried, and again asked whether Blue could get

him one.     In response, Blue gave the informant a handgun, but

ultimately    took    it   back   without   offering   to    sell   it.     The

informant then purchased a shotgun from another individual who

was in Blue’s garage during the drug deal.              The informant did

not, however, purchase a firearm from Blue.            The informant also

testified that he never felt threatened by Blue’s gun.

     On    September    28,   2011,   three   ATF   agents   met    with   Blue

outside his residence.            The parties dispute what happened at

this meeting.        The ATF agents testified that Blue voluntarily

entered the agents’ vehicle, admitted to selling cocaine, and

then gave them permission to search his car for firearms, where

they found two handguns and an assault rifle.            In contrast, Blue

                                       3
alleges that he believed he was in custody upon entering the

car, that he was not free to leave, that he was questioned and

frisked without being read his Miranda rights, and that he did

not give the agents permission to search his car.



                                                B.

       On    October      25,     2011,    a    grand    jury   returned       a    six-count

indictment, charging Blue with conspiring to distribute at least

50 grams of crack cocaine (Count One); twice distributing at

least       50    grams    of     crack      cocaine      (Counts     Two     and     Three);

possessing        a   firearm      in     furtherance      of   the    drug    trafficking

crime charged in Count Three (Count Four); distributing at least

five    grams      of     crack    cocaine      (Count     Five);     and   possessing      a

firearm in furtherance of the drug trafficking crime charged in

Count Five (Count Six).

       On August 2, 2012—nearly eight months after the deadline to

file    pre-trial         motions    and       only   four   days     before       trial—Blue

filed    a       motion    to     suppress      his     statements    made     during     the

encounter with the ATF agents outside of his home.                                    In the

motion, Blue contended that the ATF agents did not advise him of

his constitutional rights to an attorney and to remain silent.

He further contended that the agents searched his car and seized

the weapons without his permission.



                                                 4
       At the beginning of the trial, Blue’s attorney requested

that the district court rule on the motion to suppress.                                       The

district       court    denied      the      motion          on    procedural       grounds   as

untimely       under    Rule     12    of     the           Federal    Rules    of     Criminal

Procedure.       The district court also noted that it would deny the

motion    on    the    merits      even      if       the    motion    were    timely.        The

district court further suggested that, in the event Blue was

ultimately found guilty, the government should consider seeking

an    obstruction-of-justice           sentencing             enhancement      based    on    his

statements in the motion.

       Notwithstanding          the       district            court’s     ruling,        Blue’s

attorney then proffered an affidavit in support of the motion.

Although Blue’s attorney stated that he understood the court’s

ruling, he asked to submit the affidavit “just . . . to complete

the record.”        J.A. 38.       In the affidavit, Blue swore that he was

not read his “Miranda rights” during his encounter with the ATF

agents; that he believed he was in custody during the encounter;

and    that    he     “did   not      give    agents          permission       to    seize    the

firearms in the car.”              S.J.A. 615-16.                 The district court later

found that these statements were “directly contradicted” by the

ATF agents’ testimony.             J.A. 512.




                                                  5
                                        C.

      After     the   court   denied     Blue’s       suppression    motion,   the

parties    proceeded    to    trial.         During    trial,   Blue’s   attorney

sought to impeach the informant’s credibility by questioning the

informant about his prior convictions for larceny and possession

of cocaine with intent to deliver.                    The government’s counsel

objected, arguing that the convictions were inadmissible under

Rule 609 of the Federal Rules of Evidence and United States v.

Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), because Blue

failed     to   establish     that     the     confidential      informant     was

convicted of felonies that were punishable by more than a year

in prison.       Blue’s counsel admitted that he did not know the

potential maximum sentences under North Carolina law for the

cocaine convictions, but suggested that Simmons may not apply in

the context of determining admissibility under Rule 609. 1

      The district court overruled the government’s objection as

to   the   larceny    conviction,      finding    it    admissible    under    Rule

609(a)(2) because the conviction was relevant to the element of

      1
        In Simmons, we addressed whether a prior state-law
conviction constituted a “felony drug offense” warranting
sentencing enhancements under the Controlled Substances Act.
649 F.3d at 239-40. In making this inquiry, we held that courts
must look to the actual sentence the defendant could have
received–not the maximum sentence a hypothetical defendant could
have received under North Carolina law for the same conviction.
Id. at 244-45.    In doing so, we overruled circuit precedent
holding that the hypothetical sentence controlled. Id. at 245-
47.


                                         6
dishonesty.       The court sustained the objection as to the cocaine

convictions, however, finding they were inadmissible under Rule

609(a)(1) because Blue failed to show that the informant could

have been sentenced to more than one year in prison.

       On August 7, 2012, the jury convicted Blue of the four drug

offenses and acquitted him of the two firearms offenses.



                                          D.

       Blue’s presentence investigation report (PSR) recommended

several sentencing enhancements, two of which are relevant here.

First,     the    PSR     recommended      a     two-level         enhancement     under

U.S.S.G. § 2D1.1(b)(1) for possessing a firearm in connection

with    Blue’s     drug     trafficking     activities.             Second,      the   PSR

recommended a two-level enhancement under U.S.S.G. § 3C1.1 for

obstructing      or     impeding    the   administration           of   justice.       In

support, the PSR concluded that Blue lied in his affidavit when

he    described    his     encounter      with    the      ATF    agents.        The   PSR

calculated Blue’s total offense level as 42, which, combined

with   a   Criminal       History   Category     of     II,      yielded    an   advisory

guidelines range of 360 to 480 months’ imprisonment for Counts

One through Three, and 240 months’ imprisonment for Count Five,

to run concurrently.

       Blue objected to both enhancements.                  First, he claimed that

the    jury’s     verdict     acquitting       him    of    the     firearms      charges

                                           7
precluded          application           of    the        two-level        enhancement       for

possession of a dangerous weapon.                         Second, he asserted that his

affidavit did not provide materially false information to the

court,       thus        barring      any     enhancement            for    obstructing      the

administration of justice.

     At        sentencing,           the      district          court      overruled    Blue’s

objections          to     both     enhancements.              The   court    did,     however,

sustain several of Blue’s other objections (none of which are

relevant       to        this     appeal)     and       then    calculated     Blue’s     total

offense level as 36.                The court also granted a one-level upward

departure          to    Blue’s     Criminal        History      Category     based     on   the

duration of Blue’s criminal drug activity (dating back to at

least       2003    according       to     testimony       by    the    informant)     and   his

possession of a firearm in connection with the drug offenses,

moving him from a Category I to a Category II. 2                                The district

court then sentenced Blue to 252 months’ imprisonment on Counts

One, Two and Three, and 240 months’ imprisonment on Count Five,

to run concurrently.                Blue now appeals.


        2
       The PSR calculated Blue’s criminal history as a Category
II. Approximately one week before the sentencing hearing, the
district court gave notice to the parties that it would consider
an upward departure.       At sentencing, the district court
sustained Blue’s objection to the PSR’s inclusion of one of his
prior convictions, which reduced his Criminal History Category
from a II to a I. Later in the sentencing hearing, however, the
district court granted an upward departure, raising Blue’s
Criminal History Category back to a II.


                                                    8
                                      II.

                                      A.

     Blue    first      contends   that       the    district     court   erred    in

denying his motion to suppress without holding an evidentiary

hearing.     We review a district court’s denial of an untimely

motion to suppress for clear error.                 United States v. Sweat, 573

F. App’x 292, 295 (4th Cir. 2014) (citing United States v. Ruhe,

191 F.3d 376, 385 (4th Cir. 1999)).

     Under Rule 12 of the Federal Rules of Criminal Procedure,

the moving party must file a motion to suppress either before

trial   or   by   the   deadline   established         by   the   district   court.

Fed. R. Crim. P. 12(b)(3)(C), 12(c)(1).                     The failure to file

such a motion by the specified pretrial deadline operates as a

waiver unless the court finds “good cause” for the delay.                         Fed.

R. Crim. P. 12(c)(3); see also United States v. Moore, 769 F.3d

264, 267-68 (4th Cir. 2014) (affirming ruling that defendant’s

untimely motion to suppress was waived);                Sweat, 573 F. App’x at

295 (noting that “we rarely grant relief from the denial of an

untimely suppression motion”).

     Blue does not argue that he had good cause for filing his

motion nearly eight months after the court-ordered deadline.                       He

notes only that multiple attorneys represented him throughout

this lawsuit, and suggests that his current attorneys would have

timely filed the motion if they had represented him before the

                                          9
deadline.     Blue does not, however, assert that his prior counsel

rendered     ineffective      assistance.        Nor    does   he     deny    that    the

information contained in his motion to suppress was known to him

since at least September 28, 2011, the date of his meeting with

the   ATF     agents.         With   this     information,       Blue’s       original

attorneys could have filed the motion to suppress before the

December     8,   2011    court-ordered       deadline.        But    they    did    not.

Under these circumstances, the district court did not clearly

err in refusing to entertain the motion.                  See Ruhe, 191 F.3d at

386-87      (holding      that   good    cause      typically        exists    when    a

defendant does not know the basis for the motion until after the

time for such a motion had expired); United States v. Chavez,

902 F.2d 259, 263 (4th Cir. 1990) (observing that courts will

generally deny untimely suppression motions where the defendant

proffers only a “dubious excuse” for missing the court-imposed

deadline).



                                         B.

      Blue next challenges the district court’s exclusion of the

informant’s       prior      convictions      for   possession        and     sale    of

cocaine, which Blue offered for impeachment purposes.

      We    review     the    district   court’s       evidentiary      rulings       for

abuse of discretion, which occurs only when the district court’s

decision is guided by erroneous legal principles or rests upon a

                                         10
clearly erroneous factual finding.          United States v. Thomas, 669

F.3d 421, 427 (4th Cir. 2012).         Further, evidentiary rulings are

subject   to    harmless    error   review,      such   that    any    error   is

harmless where we may say “with fair assurance, after pondering

all that happened without stripping the erroneous action from

the whole, that the judgment was not substantially swayed by the

error.”      United States v. Cone, 714 F.3d 197, 219 (4th Cir.

2013) (quoting United States v. Johnson, 617 F.3d 286, 292 (4th

Cir. 2010)).

      The district court determined that the informant’s prior

convictions     were   inadmissible    under     Rule   609    of   the   Federal

Rules of Evidence.         Under that Rule, a party may use a prior

conviction to impeach a witness’s credibility if (among other

requirements) the crime for which the witness was convicted “was

punishable . . . by imprisonment for more than one year” in “the

convicting     jurisdiction.”       Fed.   R.   Evid.   609(a)(1)      (emphasis

added).   As the party seeking admission of the evidence, Blue

has the burden to demonstrate that the informant’s prior cocaine

convictions were each punishable “by imprisonment for more than

one   year”    under    North    Carolina       law.     United       States   v.

Cunningham, 638 F.2d 696, 697 (4th Cir. 1981).

      At trial, Blue’s counsel conceded that the informant was

sentenced to only “eight to ten months” for his prior cocaine

convictions.     J.A. 197.      Blue’s counsel also expressly admitted

                                      11
that he did not know the potential maximum sentences under North

Carolina law for the cocaine convictions.                 Citing Simmons, the

district court concluded that the relevant inquiry for Rule 609

purposes    was    the   maximum     sentence    the    informant       could   have

received–not the maximum sentence a hypothetical defendant could

have received under North Carolina law for the same conviction.

Accordingly, the district court held that the informant’s prior

convictions       were   for      less    than   one    year,     and     so    were

inadmissible.

     The parties now dispute whether Simmons governs the Rule

609(a)(1) analysis. 3          We need not decide this issue, however,

because    Blue    has   failed    to    demonstrate    that    the   informant’s

convictions       satisfy   Rule    609    regardless    of     whether    Simmons

applies.


     3
       As Blue correctly notes, Simmons addressed whether a prior
state conviction for marijuana possession constituted a prior
“felony drug offense” warranting sentencing enhancements under
the Controlled Substances Act (CSA).    649 F.3d at 239.    It did
not address the standard for determining whether a state law
conviction is admissible under Rule 609. On the other hand, the
government rightfully points out that the relevant language in
Rule 609(a)(1) is virtually identical to that of the CSA.
Compare Fed. R. Evid. 609 (a)(1) (requiring admission of prior
convictions   that,  “in   the  convicting   jurisdiction,”   were
“punishable . . . by imprisonment for more than one year”) with
21 U.S.C. § 802(44) (defining a “felony drug offense” as one
“that is punishable by imprisonment for more than one year under
any law . . . of a State”). Neither side points to any binding
precedent supporting their respective positions.       Regardless,
for the reasons set forth above, we decline to decide this issue
here.


                                          12
      On     appeal,     Blue’s     counsel    asserts   that   the     potential

maximum sentence for the cocaine convictions was greater than

twelve      months,    which    would   satisfy   Rule   609)(a)(1),     assuming

Simmons does not apply.             But Blue did not make this argument

during trial.          Rather, he expressly conceded that he did not

know the potential maximum sentence for the informant’s cocaine

convictions.       J.A. at 197 (Blue’s counsel conceded that “[t]he

sentence was eight to ten months” but that he did not “know what

the penalty that he could have received was” (emphasis added)). 4

He   also    did   not   cite     the   applicable   North   Carolina   statutes

governing the informant’s convictions. 5                 As such, even if we

accept his contention that Simmons does not apply here, Blue

still did not meet his burden of proving that the informant’s

prior cocaine convictions were punishable by imprisonment for


      4
        During voir dire, Blue’s counsel asked the informant
whether his convictions carried a punishment of more than one
year, and the informant replied that they did.     But on cross-
examination, government’s counsel asked the informant whether he
knew what Blue’s counsel meant when he asked him that question.
The informant replied “[n]o, not really” and stated he received
only probation for the convictions. J.A. 218. This is far from
“concrete proof” that the informant had been convicted of a
crime punishable by more than one year.        United States v.
Meserve, 271 F.3d 314, 328 (1st Cir. 2001).
     5
       Blue did not cite the statutes setting forth the maximum
sentences for the informant’s prior cocaine convictions (see
N.C. Gen. Stat. §§ 90-90; 90-95) until two days after oral
argument on this appeal, when he filed a notice of supplemental
authority. Of course, this filing came far too late to satisfy
Blue’s obligation to provide this information in the district
court proceeding.


                                          13
more    than    one    year.        See    Cunningham,       638    F.2d      at   697-98;

Meserve, 271 F.3d at 327-28 (finding that the “party seeking to

introduce      evidence       of     a    prior     conviction          for   impeachment

purposes under Rule 609 was obligated to have researched [the

witness’s] prior offenses and to have determined that they were

admissible”).         Accordingly, the district court did not abuse its

discretion by declining to admit evidence of the informant’s

prior cocaine convictions.

       Even if the district court did err by applying Simmons to

Rule 609, we conclude that any such error was harmless.                                 The

government      produced       substantial          evidence       of    Blue’s     guilt,

including video and audio recordings of the cocaine purchases

taken from equipment worn by the informant, the actual crack

cocaine purchased by the informant, the testimony of several

witnesses regarding Blue’s long history of drug dealing, and

Blue’s own admission to the ATF agents that he sold cocaine.

The    district    court’s         refusal    to    allow    Blue       to    impeach   the

informant with the cocaine convictions did not undermine any of

this evidence.

       In addition, the district court allowed Blue to ask the

informant      about    the    informant’s         prior    larceny      conviction,     as

well as whether the informant had prior convictions waived in

exchange for cooperation with the government.                             Blue thus had

several     opportunities          to     impeach     the    informant.            We   are

                                             14
satisfied that Blue’s inability to also question the informant

regarding his prior cocaine convictions did not “substantially

sway[]” the jury’s verdict.    Cone, 714 F.3d at 219.



                                    III.

     We now turn to Blue’s sentence.            “[W]e review the district

court’s sentencing procedure for abuse of discretion, and must

reverse if we find error, unless we can conclude that the error

was harmless.”      United States v. Gomez-Jimenez, 750 F.3d 370,

379 (4th Cir. 2014) (citation omitted).            In determining whether

the district court properly applied the Sentencing Guidelines

(“Guidelines”),     we    “review      the      district        court’s   legal

conclusions de novo and its factual findings for clear error.”

Id. at 379–80 (citation and internal quotations omitted).



                                     A.

     Blue   first   argues   that     the      district    court     improperly

applied the sentencing enhancement for obstruction of justice.

The Guidelines provide for a two-level enhancement when “the

defendant   willfully    obstructed       or   impeded,    or    attempted   to

obstruct or impede, the administration of justice with respect

to the . . . sentencing of the instant offense of conviction.”

U.S.S.G. § 3C1.1.    Examples of covered conduct include providing

“materially false information to a judge.”                 Id. § 3C1.1 cmt.

                                     15
n.4(F).         Information is materially false when, if believed, it

“would          tend    to     influence        or      affect       the        issue   under

determination.”              Id. § 3C1.1 cmt. n.6.             As we have previously

held, the obstruction enhancement is warranted when a defendant

lies       in     a    suppression        hearing        regarding         whether      police

administered a Miranda warning.                      United States v. Bonsu, 291 F.

App’x 505, 515 (4th Cir. 2008) (per curiam).

       Here,      the     district      court    concluded        that     Blue    “willfully

lied about a material matter” in his affidavit when he swore

that the ATF agents placed him in custody without reading him

his Miranda rights and failed to obtain his permission to search

his    car.        J.A.    514.      On    appeal,      Blue      does    not     contest   the

district         court’s      conclusion     that      he    lied    in    his     affidavit.

Rather, he asserts that the obstruction enhancement should not

apply because he only submitted his affidavit as a proffer under

Rule 103(a)(2) of the Federal Rules of Evidence to preserve the

suppression issue for appeal. 6                      In essence, Blue contends that

the obstruction enhancement should not apply because he directed

his    lies      to    this    Court,     rather      than   to     the    district     court.

Unsurprisingly, we reject this reasoning.



       6
       Blue did not make this argument below.         Rather, he
contended only that his affidavit was truthful.           At the
sentencing hearing the district court concluded he lied in the
affidavit, and Blue does not contest this finding on appeal.


                                                16
       Offers of proof under Rule 103(a)(2) serve at least two

purposes:       (i) to permit the district court to “reevaluate” or

“reconsider” its ruling; and (ii) to provide a record from which

an   appellate        court   can   determine    whether   the    district   court

erred and whether the error requires reversal.                   See 21 Wright &

Miller, Federal Practice and Procedure § 5040 (2d ed. 1977);

United States v. Yarrington, 634 F.3d 440, 447 (8th Cir. 2011).

Regardless of which purpose the movant has in mind, the ultimate

goal is the same: to persuade either the trial judge or the

appellate panel to rule in the movant’s favor.                   It simply makes

no difference whether Blue submitted the affidavit in an attempt

to change the district court’s mind or to make the record for

appeal: either way, he provided “materially false information to

a    judge.”      U.S.S.G.      § 3C1.1   cmt.    n.4(F). 7      Accordingly,   we

conclude       that    the    affidavit   justifies    the    district   court’s

imposition of the two-level obstruction enhancement. 8


       7
        Notably, Application Note 4(F) does not distinguish
between district and appellate judges.
     8
       Of course, a proffer under Rule 103 intended to preserve
an issue for appeal will not always lead to an obstruction
enhancement. For example, here Blue could have argued on appeal
that the district court erred in concluding that he lied in the
affidavit.   He also could have argued that the district court
erred in concluded he lied without affording him an opportunity
to cross-examine the ATF agents regarding their September 28,
2011 meeting.   Assuming arguendo that we agreed, we would have
reversed the obstruction enhancement.    Rather than make these
arguments, however, Blue asserted only that an evidentiary
proffer intended to preserve an issue for appeal can never serve
(Continued)
                                          17
                                         B.

       Blue next argues that the district court improperly applied

a sentencing enhancement for possession of a dangerous weapon in

connection with his drug trafficking offenses.                   Under U.S.S.G.

§ 2D1.1(b)(1), a two-level enhancement should be applied “[i]f a

dangerous weapon (including a firearm) was possessed.”                            This

“enhancement should be applied if the weapon was present, unless

it is clearly improbable that the weapon was connected with the

offense.”        Id. § 2D1.1 cmt. n.11(A) (emphasis added).                Again, we

conclude that the district court did not err in applying this

enhancement.

       Blue      contends   his    acquittal      on   the     firearms      charges

prohibited the district court from applying this enhancement.

But    it   is   well-settled     that   a    sentencing     court   may    consider

acquitted conduct as long as the conduct is established by a

preponderance of the evidence.               See United States v. Watts, 519

U.S. 148, 154 (1997); United States v. Lawing, 703 F.3d 229, 241

(4th    Cir.     2012).     Notwithstanding        Blue’s     acquittal      on    the

firearms charges, we conclude that the district court did not

err in determining by a preponderance of the evidence that Blue

possessed a firearm in connection with his drug offenses.                          The




as a grounds for an obstruction enhancement.     For the reasons
set forth above, we decline to adopt this sweeping rule.


                                         18
trial testimony conclusively established that Blue possessed a

handgun     on     his    person    during      the      second   and   third     drug

purchases.        Witnesses also testified that the handgun could be

used to protect the drug proceeds or deter theft during the

purchases.        This evidence warranted application of the weapons

enhancement under § 2D1.1(b)(1).                See United States v. Manigan,

592 F.3d 621, 629 (4th Cir. 2010) (stating that a § 2D1.1(b)(1)

weapons enhancement is appropriate when a firearm's “location

makes it readily available to protect either the participants

themselves during the commission of the illegal activity or the

drugs     and    cash    involved   in    the   drug     business”   (citation     and

internal quotations omitted)). 9



                                           C.

      Finally, Blue contends the district court erred in granting

the   government’s        motion    for   an    upward    departure.     An     upward

departure may be warranted if “reliable information indicates


      9
       Blue contends that Manigan is inapposite because, unlike
here, evidence in that case demonstrated that the firearms
presented a real risk or threat of violence.      We reject this
limited reading.    Manigan also held that a firearm will be
considered sufficiently connected to a drug offense when it is
“readily available to protect” the participants in the deal.
592 F.3d at 629. Here, the evidence demonstrated that Blue had
a handgun on his person during both the second and third drug
purchases.   The district court did not clearly err in finding
that this evidence demonstrated that Blue may have used the
handgun for protection during the drug purchases.


                                           19
that   the   defendant’s          criminal         history       category      substantially

under-represents         the     seriousness          of    the      defendant’s      criminal

history or the likelihood that the defendant will commit other

crimes.”     U.S.S.G. § 4A1.3(a)(1).                    “When reviewing a departure,

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. Howard, 773 F.3d 519, 529 (4th Cir.

2014) (citation omitted).

       At   sentencing,         the    district         court     concluded     that     Blue’s

Criminal     History        Category       was    a     level    I   based    on   his    prior

conviction for possession of marijuana, for which he received no

term of imprisonment.             See U.S.S.G. § 4A1.1(c).                   The government

then moved for an upward departure to a level VI, claiming a

level I substantially under-represented Blue’s criminal history

and the likelihood he would commit other crimes upon release.

See id. § 4A1.3(a)(1).            The district judge refused to go all the

way to level VI, but did grant a one-level departure to level

II.    In doing so, the district court noted that, according to

testimony        by   the      informant         that      the    district      court     found

credible, Blue had dealt crack for almost a decade.

       On   appeal,      Blue    makes       two      arguments       in    support     of   his

contention that the district court erred in granting an upward

departure.            First,     he    contends          that     the      district     court’s

                                                 20
February 25, 2013 order giving notice of a possible departure

from the Sentencing Guidelines was deficient under Rule 32(h) of

the Federal Rules of Criminal Procedure.                      According to Blue,

this   “boilerplate       notice”      deprived    him   of      an    opportunity    to

adequately prepare a defense to the court’s contemplated upward

departure.

       Because   Blue     failed    to    object    to   the      district      court’s

allegedly inadequate notice below, we review for plain error.

See United States v. McClung, 483 F.3d 273, 276 (4th Cir. 2007).

“To establish error, the appealing party must show that an error

(1) was    made,       (2) is    plain     (i.e.    clear      or      obvious),     and

(3) affects substantial rights.”                  United States v. Lynn, 592

F.3d 572, 577 (4th Cir. 2010).                 The appealing defendant bears

the burden of showing plain error.                 United States v. Carthorne,

726 F.3d 503, 510 (4th Cir. 2013).

       We conclude that Blue cannot satisfy even the first prong

of plain error analysis because the district court did not err

in the first instance.           Federal Rule of Criminal Procedure 32(h)

only   requires    that     an   upward     departure       notice       “specify    any

ground on which the court is contemplating a departure.”                             The

district court’s notice plainly satisfied that Rule.                       The notice

stated    that   the    court    was     contemplating      an    upward       departure

because    reliable      information       indicated     that         Blue’s    criminal

history category substantially under-represented the seriousness

                                          21
of   his   criminal      history    and   the     likelihood    that    Blue    would

commit     other   crimes.         The    notice    also   cited      the    relevant

Sentencing      Guideline,     U.S.S.G.        § 4A1.3(a)(2)(E),       and    several

Fourth Circuit decisions applying that Guideline.                  Blue thus had

sufficient      notice    to   prepare      his    objections    to    the     upward

departure. 10

      Second, Blue asserts that the district court engaged in

impermissible double counting.                 “Double counting occurs when a

provision of the Guidelines is applied to increase punishment on

the basis of a consideration that has been accounted for by

application of another Guideline provision or by application of

a statute.”        United States v. Reevey, 364 F.3d 151, 158 (4th

Cir. 2004) (citation omitted).              As Blue acknowledges, “there is

a presumption that double counting is proper where not expressly

prohibited by the guidelines.”                 United States v. Hampton, 628

F.3d 654, 664 (4th Cir. 2010).              Blue contends the basis for the

upward departure–his lengthy history of cocaine deals with the


      10
       In a notice of supplemental authority, Blue cites several
cases in other jurisdictions purportedly holding that a Rule
32(h) notice must provide both factual and legal grounds for a
contemplated departure.   Even assuming we were bound by these
out-of-circuit cases, the notice was still appropriate because
it set forth both grounds. First, it provided the factual basis
by citing “the seriousness of defendant’s criminal history”—that
is, his drug dealing since at least 2003.       D.E. 108.    And
second, it provided the legal basis by citing the applicable
sentencing Guideline and several Fourth Circuit decisions
applying that Guideline.


                                          22
informant dating back to at least 2003–was already accounted for

in    his    base   offense    level    under       the   Guidelines.            Blue      thus

contends the district court double counted by again considering

this conduct as the basis for the upward departure.

       Blue    is   mistaken.          The    PSR    expressly       states       that       in

determining Blue’s base offense level, the probation officer did

not consider the cocaine deals with the informant between 2003

and 2010.       J.A. 598 (stating that the officer did not consider

these deals “[t]o avoid potential double-counting”).                               The PSR

also    calculated       Blue’s      base     offense      level     based       on     26.74

kilograms      of    crack     cocaine.           This     quantity        excludes        the

approximately       25    to   30    kilograms      of    crack    Blue    sold       to    the

informant between 2003 and 2010.                  Accordingly, these sales were

not accounted for in Blue’s base offense level or any other

Guidelines      calculation.          Because     double       counting     occurs         only

when a consideration has been fully accounted for in another

Sentencing      Guidelines          provision,      United        States    v.        Rivera-

Santana, 668 F.3d 95, 101-02 (4th Cir. 2012), the district court

did    not    double     count.       Accordingly,        we   affirm      the    district

court’s upward departure.



                                             D.

       Finally, even assuming that the district court erred in its

application of the Guidelines, we would still affirm because any

                                             23
error    was    harmless.        A     Guidelines        error    is       harmless    if    we

determine that: (i) “the district court would have reached the

same result even if it had decided the guidelines issue the

other way,” and (ii) “the sentence would be reasonable even if

the guidelines issue had been decided in the defendant’s favor.”

Gomez-Jimenez,      750        F.3d    at    382     (quoting      United       States       v.

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

prongs are satisfied here.

     First, the district court made clear that it would have

imposed the same sentence even if it made an error in applying

the Guidelines.          See J.A. 581.         (“[I]f I have miscalculated the

advisory       Guideline       range    or     erroneously         departed       in     some

fashion, under U.S. v. Keene . . . and U.S. v. Savillon-Matute

. . . I would impose this same sentence as a variant sentence

having    fully    considered         and    articulated         the    rationale       under

[Section] 3553(a).”).

     Second,       the     district         court       provided       a     thorough       and

persuasive      § 3553(a)        analysis,         carefully       considering         Blue’s

individual       circumstances,          prior      criminal        record,       and       the

likelihood he would commit future offenses.                            Accordingly, the

sentence was substantively reasonable.                          See United States v.

Mendoza-Mendoza,         597     F.3d       212,    216     (4th       Cir.     2010)       (in

determining whether a sentence is substantively reasonable, we

“examine[] the totality of the circumstances to see whether the

                                             24
sentencing court abused its discretion in concluding that the

sentence   it   chose   satisfied    the   standards   set   forth   in

§ 3553(a)”).      Accordingly, we would affirm regardless of any

purported Guidelines error.



                                IV.

     For the foregoing reasons, we affirm the judgment of the

district court.

                                                              AFFIRMED




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