                                     UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 16-4128


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

JERMAINE CORDOVA,

                     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. (7:13-cr-00090-D-1)


Submitted: June 22, 2017                                          Decided: June 27, 2017


Before SHEDD and WYNN, 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Affirmed by unpublished per curiam opinion.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. John Stuart Bruce, United States Attorney, Jennifer P. May-
Parker, First Assistant United States Attorney, Phillip A. Rubin, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Jermaine Cordova pled guilty to possessing a firearm as a felon, in violation of

18 U.S.C. §§ 922(g), 924(e) (2012). He was sentenced to 420 months’ imprisonment. In

his first appeal, the sole issue Cordova raised was that he was improperly sentenced

under the Armed Career Criminal Act (ACCA). While his appeal was pending, the

Supreme Court decided Johnson v. United States, 135 S. Ct. 2551 (2015), which

invalidated the residual clause of the ACCA.        The Government filed an unopposed

motion to remand, acknowledging that Cordova’s sentence should be vacated and

remanded to the district court for resentencing in accordance with Johnson. We granted

the motion. United States v. Cordova, No. 14-4721 (4th Cir. July 16, 2015) (unpublished

order).

          On remand, the district court noted that Cordova’s criminal history category and

total offense level produced a Sentencing Guidelines range of 360 months to life, but that,

in the absence of the ACCA enhancement, the Guidelines term became the 120-month

statutory maximum.        Without rearguing the Guidelines issues raised at his first

sentencing, Cordova noted his objections to the court’s rulings in order to preserve the

Guidelines issues for appeal.         The court sentenced Cordova to 120 months’

imprisonment. The court further explained that even if it had miscalculated Cordova’s

advisory Guidelines range, it would impose the same sentence as an alternative variant

sentence. (J.A. 239).

          On appeal Cordova asks whether his 120-month sentence was procedurally and

substantively unreasonable, challenging the district court’s rulings as to the applicability

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of several Guidelines provisions. The Government argues that these issues are precluded

by the mandate rule, because Cordova could have raised these issues in his first appeal

but did not. See Doe v. Chao, 511 F.3d 461, 465 (4th Cir. 2007) (ruling mandate rule

requires that “any issue that could have been but was not raised on appeal is waived and

thus not remanded”). We denied the Government’s motion to dismiss based on this

argument by prior order, and we decline to revisit the issue.

       We do address the Government’s assumed error harmlessness argument. The

Government contends (1) that, even if we assume that the district court erred in each of

the several Guidelines issues Cordova raises on appeal, the court has stated that it would

impose the same 120-month sentence as an upward variant sentence; and (2) that this

sentence would be substantively reasonable. See United States v. Gomez-Jimenez, 750

F.3d 370, 382 (4th Cir. 2014) (noting that procedural sentencing error is considered

harmless if district court would have reached same result even if it reached opposite

conclusion on Guidelines issue, and sentence would be reasonable even in those

circumstances); United States v. Savillon-Matute, 636 F.3d 119, 123 (4th Cir. 2011) (“[I]t

would make no sense to set aside a reasonable sentence and send the case back to the

district court since it has already told us that it would impose exactly the same sentence, a

sentence we would be compelled to affirm.” (internal quotation marks and alteration

omitted)).

       Upon close examination of the record and the law, and in light of the district

court’s alternative variant sentence, we find harmless any Guidelines error the district

court may have committed. We agree with the Government that the district court has

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satisfied the clear statement requirement of the assumed error harmlessness inquiry. This

leads us to the second part of the inquiry: whether the sentence would be reasonable even

if the Guidelines issues were decided in Cordova’s favor—or, in other words, whether

Cordova’s 120-month sentence is substantively reasonable.            See United States v.

McDonald, 850 F.3d 640, 643 (4th Cir. 2017).

       The record reveals that the district court carefully reviewed the 18 U.S.C.

§ 3553(a) (2012) sentencing factors on remand and found a 120-month sentence

sufficient but not greater than necessary to conform to the purposes of these factors. See

United States v. Diosdado-Star, 630 F.3d 359, 367 (4th Cir. 2011). Given the district

court’s reasoning and the deferential standard of review we apply when reviewing

criminal sentences, see Gall v. United States, 552 U.S. 38, 51, 59-60 (2007), we conclude

that Cordova’s sentence would be substantively reasonable even if the disputed

Guidelines issues were resolved in his favor. See Savillon-Matute, 636 F.3d at 123-24.

Therefore, given the district court’s alternative variant sentence, any error in the district

court’s Guidelines calculations is harmless. Accordingly, we affirm the district court’s

judgment. 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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