                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 12-4680


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

           v.

RODNEY BURRELL,

                  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. (5:10-cr-00056-D-1)


Argued:   September 20, 2013               Decided:   October 17, 2013


Before MOTZ, SHEDD, and THACKER, Circuit Judges.


Affirmed by unpublished opinion. Judge Shedd wrote the opinion,
in which Judge Motz and Judge Thacker joined.


ARGUED:   Mitchell G. Styers, BANZET, THOMPSON & STYERS, PLLC,
Warrenton, North Carolina, for Appellant.    Joshua L. Rogers,
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Unpublished opinions are not binding precedent in this circuit.
SHEDD, Circuit Judge:

       Rodney     Burrell     pled   guilty      without       a    plea    agreement      to

possession with intent to sell 5 grams or more of cocaine base

and aiding and abetting another in the same, in violation of 21

U.S.C.      §   841(a)(1)     and    18    U.S.C.   §   2. 1       The   district     court

sentenced Burrell to 210 months imprisonment. The court upwardly

departed from a guidelines range of 46 to 57 months to a range

of 168 to 210 months under § 4A1.3(a)(1), on the ground that

Burrell’s        criminal     history       category        “woefully       fail[ed]      to

capture         the    appropriate         criminal     history            category       for

[Burrell].” J.A. 97. 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). J.A. 125. Burrell now appeals his sentence. For the

reasons set forth below, we affirm.

       “Federal       sentencing     law    requires        the    district       judge   in

every case to impose ‘a sentence sufficient, but not greater

than       necessary,    to    comply      with’      the     purposes       of    federal

       1
       The district court originally sentenced Burrell as a
career offender, sentencing him to 300 months imprisonment and 8
years supervised release. However, Burrell appealed the original
sentence on the ground that one of his prior crimes, the North
Carolina marijuana conviction, could not serve as a predicate
for the career offender enhancement. On appeal, we affirmed
Burrell's conviction, vacated his sentence, and remanded for
resentencing in light of United States v. Simmons, 649 F.3d 237
(4th Cir. 2011) (en banc).



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sentencing,      in    light     of   the   Guidelines        and    other    §   3553(a)

factors.” Freeman v. United States, 131 S. Ct. 2685, 2692 (2011)

(quoting    18     U.S.C.   §    3553(a)).      Under    the     current      sentencing

regime, “district courts may impose sentences within statutory

limits based on appropriate consideration of all of the factors

listed     in     §     3553(a),      subject      to    appellate         review       for

‘reasonableness.’” Pepper v. United States, 131 S. Ct. 1229,

1241     (2011).        “Reasonableness         review        has    procedural         and

substantive components.” United States v. Mendoza–Mendoza, 597

F.3d     212,    216    (4th     Cir.    2010).    “Procedural         reasonableness

evaluates the method used to determine a defendant’s sentence. .

.   .   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).” Id.

        Burrell 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

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 we should affirm the sentence because the upward departure



                                            3
is proper under the guidelines and, alternatively, the variance

sentence is reasonable. 2

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

2008) (emphasis in original), 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:

       As explained above, the 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 Rivera-Santana, 668 F.3d at 104 (in affirming the

sentence, we held that 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”);


       2
        “The terms ‘variance’ and ‘departure’ describe two
distinct sentencing options available to a sentencing court.”
United States v. Rivera-Santana, 668 F.3d 95, 100 n.6 (4th
Cir.), cert. denied, 133 S. Ct. 274 (2012). A departure sentence
is imposed under the framework set out in the sentencing
guidelines, but a variance sentence is considered to be “a non-
Guidelines sentence” that is nevertheless justified under the
sentencing factors set forth in § 3553(a). Id.



                                           4
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     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”). 3 The same reasoning applies

here.    We   do   not    need    to   address      whether    the    court   properly

departed under § 4A1.3(a)(1) because it explicitly stated it

would    apply     the    same     sentence       as     an   alternative     variance

sentence considering the § 3553(a) factors, J.A. 125, and the

variance sentence is reasonable.

     Burrell       has    an     extensive       criminal     history,      which     the

district court discussed at great length when considering the §

3553(a) factors. The court noted that Burrell’s criminal past

includes,      among      other        things,      a     voluntary        manslaughter

conviction, gang activity, an “abysmal prison record” with 13

infractions, and a conviction for possession with intent to sell

and deliver marijuana. J.A. 88–92. The court described Burrell

    3
       See also United States v. Hargrove, 701 F.3d 156 (4th Cir.
2012), cert. denied, 133 S. Ct. 2403 (2013); United States v.
Savillon-Matute, 636 F.3d 119 (4th Cir.), cert. denied, 132 S.
Ct. 454 (2011). In both cases, we applied the “assumed error
harmlessness inquiry” and affirmed sentences without considering
the merits of the claimed procedural sentencing errors because
the record established that the district courts would have
reached the same result, which was reasonable, regardless of the
errors.



                                             5
as having “an extraordinary level of recidivism, a commitment to

recidivism, a commitment to being a drug dealer, a commitment

that is not good for him or society or anyone.” J.A. 92. The

court stated “there is a tremendous need to protect the public”

and for individual incapacitation here because “if Mr. Burrell

were released any time remotely soon and he were back out . . .

he    would    get     right    back   to    it.”       J.A.   122.    The     court    also

discussed the “need to promote respect for the law,” the need

for “just punishment,” and the need for deterrence, noting: “I

think    a    person    who    repeatedly        gets    chances      and    leniency    and

opportunities and rejects them is saying to society and to the

legal system that they don’t have any respect for it.” J.A. 122.

The court also considered Burrell’s recently improved behavior

while incarcerated but was not convinced that this alone wiped

away the rest of his extensive criminal past. J.A. 104–05; see

Pepper v. United States, 131 S. Ct. 1229, 1241–42 (2011) (“[W]e

think it clear that when a defendant's sentence has been set

aside    on    appeal     and    his   case       remanded     for     resentencing,       a

district       court     may     consider         evidence       of     a      defendant's

rehabilitation since his prior sentencing . . . . A categorical

bar     on    the    consideration          of    postsentencing            rehabilitation

evidence would directly contravene Congress' expressed intent in

§ 3661.”).



                                             6
     The   district    court    has    broad    discretion        in    sentencing

decisions, see Gall v. United States, 552 U.S. 38, 51 (2007),

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.

                                                                          AFFIRMED




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