                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 14-4090


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

RASHAD JACOBS,

                 Defendant - Appellant.



                               No. 14-4092


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

RASUL GATFORD,

                 Defendant - Appellant.



Appeals from the United States District Court for the Eastern
District of North Carolina, at Wilmington.   Terrence W. Boyle,
District Judge. (7:13-cr-00010-BO-3; 7:13-cr-00010-BO-2)


Submitted:   August 21, 2014                 Decided:   September 3, 2014


Before NIEMEYER, SHEDD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.


Ronald Cohen, Wilmington, North Carolina; Daniel Henry Johnson,
WILLIS JOHNSON & NELSON, PLLC, Raleigh, North Carolina, for
Appellants.   Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Shailika K. Shah, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

            Rashad        Jacobs    and     Rasul      Gatford        each       pled    guilty,

pursuant to a plea agreement, to brandishing a firearm during a

drug trafficking crime, in violation of 18 U.S.C. §§ 2, 924(c)

(2012).      The     district       court     sentenced          them       to    120     months’

imprisonment,        an    upward      variance         of       36    months          from     the

Sentencing    Guidelines       range.         See      U.S.      Sentencing            Guidelines

Manual § 2K2.4(b) (2013).              Jacobs and Gatford appeal, claiming

that their sentences are substantively unreasonable.                                  We affirm.

            We      review    the    district       court’s           sentence,          “whether

inside, just outside, or significantly outside the Guidelines

range[,]”     for     reasonableness         “under         a    deferential            abuse-of-

discretion standard.”              Gall v. United States, 552 U.S. 38, 41,

51 (2007).         Because Jacobs and Gatford do not challenge the

procedural       reasonableness        of     their      sentences,              we    turn     our

attention     to     substantive          reasonableness              and    consider          “the

totality    of     the    circumstances,         including            the    extent       of    any

variance from the Guidelines range.”                            Id. at 51.             An upward

variance is permitted where justified by the 18 U.S.C. § 3553(a)

(2012) factors.           See id.      We “must give due deference to the

district    court’s       decision     that      the    §       3553(a)      factors,          on   a

whole, justify the extent of a variance,” and “[t]he fact that

[we] might reasonably have concluded that a different sentence



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was   appropriate         is    insufficient          to     justify       reversal     of   the

district court.”          Id.

               Jacobs     and       Gatford    assert        that    the     district     court

improperly relied upon the need to avoid unwarranted sentencing

disparities under 18 U.S.C. § 3553(a)(6) to the exclusion of the

other statutory sentencing factors.                        We disagree.        The district

court       described     how    Appellants’         individual        actions     were      more

culpable than those of defendants with similar charges and were

analogous to discharging a firearm.                        We also conclude that the

court did not improperly rely upon the sentence imposed on a co-

defendant to determine the length of the variance.

               Jacobs and Gatford also argue that their sentences are

contrary       to    Congress’        intent    for    different       mandatory       minimum

sentences to apply to brandishing and discharging a firearm.

However,       Congress        left    district        courts       with     the   option     of

imposing      sentences        of    seven     years    or    more     for    brandishing      a

firearm if the facts so warranted.                     See 18 U.S.C. § 924(c)(1)(A)

(declining          to   set    maximum       sentence).            Therefore,      Congress’

intent in formulating § 924(c) does not render unreasonable the

district       court’s         imposition       of      120-month          sentences      under

§ 924(c)(i)(A)(ii). ∗


        ∗
       To the extent Appellants raise new claims in their reply
brief, those claims are not properly before the court.        See
United States v. Ashford, 718 F.3d 377, 383 n.* (4th Cir. 2013).


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           Accordingly, we hold that the upward variance imposed

by the district court is substantively reasonable, and we affirm

the   judgment   of   the   district   court.   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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