                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4227


UNITED STATES OF AMERICA,

                 Plaintiff – Appellee,

          v.

TIMOTHY ALEXANDER DEVINE,

                 Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.    James C. Dever, III,
Chief District Judge. (5:07-cr-00010-D-1; 5:10-cv-00091-D)


Submitted:   January 31, 2014             Decided:   February 11, 2014


Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Mitchell G. Styers, BANZET, THOMPSON & STYERS, PLLC, Warrenton,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Joshua L. Rogers, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Timothy Alexander Devine pleaded guilty to possession

of a firearm by a convicted felon, in violation of 18 U.S.C.

§§ 922(g)(1), 924 (2012). *        The district court sentenced Devine

to 120 months of imprisonment.        The court upwardly departed from

a Sentencing Guidelines range of 51 to 63 months to a range of

110   to    137   months   under   U.S.   Sentencing    Guidelines     Manual

§ 4A1.3(a)(1)      (2012),   based   on    a   combination    of   factors,

including “past convictions for serious and violent offenses,

numerous     probation     violations,    disciplinary      actions,     gang

involvement including [new] gang involvement while in federal

custody, and receipt of lenient treatment for prior felonious

conduct.”     In addition, the court stated that even if the upward

departure was erroneous, it would impose the same sentence as a

variance under the factors set forth in 18 U.S.C. § 3553(a)

(2012).     Devine now appeals his sentence.           For the reasons set

forth below, we affirm.



      *
       Devine was originally sentenced pursuant to an upward
variance and upward departure to a term of 262 months. In 2012,
Devine filed a motion to vacate his sentence under 28 U.S.C.
§ 2255 (2012) based on United States v. Simmons, 649 F.3d 237
(4th Cir. 2011).     The district court granted the motion to
vacate the sentence because, after Simmons, Devine no longer had
three qualifying felonies under 18 U.S.C. § 924(e); however, he
still had two qualifying convictions under 18 U.S.C. § 922(g).
Therefore, the new maximum sentence was 120 months.



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             We review a sentence for reasonableness, applying an

abuse of discretion standard.             Gall v. United States, 552 U.S.

38,    46    (2007).       The   court       first   reviews    for      significant

procedural error, and if the sentence is free from such error,

it    then   considers      substantive       reasonableness.          Id.    at     51.

Procedural error includes improperly calculating the Sentencing

Guidelines range, treating the Guidelines range as mandatory,

failing to consider the 18 U.S.C. § 3553(a) factors, and failing

to adequately explain the selected sentence.                Id.       To adequately

explain      the    sentence,      the    district     court      must       make    an

“individualized assessment” by applying the relevant § 3553(a)

factors to the case’s specific circumstances.                   United States v.

Carter, 564 F.3d 325, 328 (4th Cir. 2009).                   The individualized

assessment need not be elaborate or lengthy, but it must be

adequate     to    allow   meaningful    appellate     review.        Id.    at     330.

“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).”        United     States     v.

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

             Devine challenges his sentence on two grounds: (1) the

district court procedurally erred in upwardly departing because

his    criminal      history     category      did   not    underrepresent          the

seriousness of his criminal history, and the court failed to

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adequately    explain       incrementally      why     it    chose    the     criminal

history category and offense level that it did; and (2) the

sentence is substantively unreasonable.                     The Government argues

that the court should affirm the sentence because the upward

departure is proper under the Guidelines and, alternatively, the

variance sentence is reasonable.

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

2008), 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.”      Affirming the sentence, we stated:

      [t]he   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.

Id.; see also United States v. Rivera-Santana, 668 F.3d 95, 104

(4th Cir.), cert. denied, 133 S. Ct. 274 (2012) (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


                                          4
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”).        The same reasoning applies here.                       This court need

not address whether the district court properly departed under

§ 4A1.3(a)(1) because the district court explicitly stated that

it   would     apply    the   same    sentence         as    an    alternative         variance

sentence considering the § 3553(a) factors, and the variance

sentence is reasonable.

               Devine has an extensive criminal history, which the

district court discussed at length when considering the upward

departure and § 3553(a) factors.                    The court noted that Devine’s

criminal history was serious and violent and included, among

other things, two armed robberies that he was allowed to plead

down     on,    numerous      probation          violations,        gang      activity       and

continuing gang involvement while in prison, an abysmal prison

record    in    both    state      and       federal    custody,        and       “receipt    of

repeated lenient treatment for past felonious conduct.”                                      The

court      credited        Devine         with      having         matured         and      made

rehabilitative         efforts     since      his   first      sentencing,          but    found

that Devine’s criminal history and persistent participation in

gangs     demonstrated        that       a    longer        sentence     was       needed     to

“incapacitate, deter, [and] provide just punishment.”



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              In     addition     to       claiming     that     his        sentence       was

excessively         long,   Devine         claims     that     the        district       court

substantively erred by impermissibly considering his continued

gang participation in prison and erroneously finding “a need to

deter and continued need to incapacitate.”                      These arguments are

unavailing because both of these considerations by the court

speak   directly       to   three      §   3553(a)     factors.            See   18   U.S.C.

§ 3553(a)(1) (stating that court must consider the history and

characteristics        of   the   defendant);         18   U.S.C.      §    3553(a)(2)(B)

(stating      that    court      must      consider    the     need        to    deter     the

defendant); 18 U.S.C. § 3553(a)(2)(C) (stating that court must

consider the need to protect the public from further crimes of

the defendant).

              The district court has broad discretion in sentencing

decisions, see Gall, 552 U.S. at 51, and based on the court’s

careful consideration of the § 3553(a) factors, we cannot say

that    the        alternative      variance        sentence         is     unreasonable.

Therefore, even if the court was incorrect in upwardly departing

under § 4A1.3(a)(1), that error would be harmless because the

variance sentence based on the § 3553(a) factors is reasonable

and thus “justifie[s] the sentence imposed.”                              Rivera-Santana,

668 F.3d at 104.

              We therefore affirm the sentence.                  We        dispense       with

oral    argument      because     the      facts    and      legal    contentions         are

                                             6
adequately   presented   in   the   materials   before   this   court   and

argument would not aid the decisional process.



                                                                 AFFIRMED




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