                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-4520


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

LINWOOD BATTS, JR.,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.    Louise W. Flanagan,
Chief District Judge. (5:07-cr-00064-FL-1)


Submitted:   April 20, 2011                  Decided:     April 28, 2011


Before TRAXLER,   Chief   Judge,   and   NIEMEYER   and   KING,   Circuit
Judges.


Affirmed by unpublished per curiam opinion.


David L. Neal, Hillsborough, North Carolina, for Appellant.
George E. B. Holding, United States Attorney, Ethan A. Ontjes,
Jennifer P. May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Linwood Batts, Jr., pled guilty, pursuant to a written

plea   agreement,      to     conspiracy      to    possess       with      the    intent   to

distribute cocaine, in violation of 21 U.S.C. § 846 (2006), and

using and carrying a firearm during and in relation to a drug

trafficking crime, in violation of 18 U.S.C. § 924(c) (2006).

The district court calculated Batts’ Guidelines sentence on the

firearm      count    at    eighty-four       months’       imprisonment,           see   U.S.

Sentencing Guidelines Manual (“USSG”) (2007).                               At sentencing,

the    Government      moved     for     an       upward        departure         under   USSG

§§ 4A1.3, p.s., and 5K2.9, p.s.                   The district court granted the

Government’s      motion,      imposed     an      upward       departure       pursuant    to

USSG       § 5K2.9,    p.s.,     and     sentenced          Batts      to     142     months’

imprisonment on the firearm count, to be served consecutively to

a   fifty-seven       month    prison    sentence          on    the     drug      conspiracy

count, for a total imprisonment term of 199 months. *                              On appeal,

       *
       We previously affirmed the district court’s imposition of
the fifty-seven month prison sentence on the drug conspiracy
count but vacated the sentence on the firearm count and remanded
for resentencing.    United States v. Batts, 317 F. App’x 329,
332-33 (4th Cir. 2009) (No. 08-4179).      At resentencing, the
Government moved for an upward departure, but the district court
refused to allow the motion, reasoning that our opinion
precluded the granting of an upward departure on remand.     The
Government appealed, and we again vacated the sentence on the
firearm count and remanded for resentencing, concluding that the
district court misunderstood the scope of our mandate.    United
States v. Batts, 363 F. App’x 230, 232 (4th Cir. 2010) (No. 09-
4676).


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Batts challenges his sentence on the firearm count, arguing that

the district court erred in imposing the upward departure under

USSG § 5K2.9, p.s.          We affirm.

             We    review     the        district     court’s      sentence,       “whether

inside, just outside, or significantly outside the Guidelines

range,”     under     a     “deferential          abuse-of-discretion         standard.”

Gall v. United States, 552 U.S. 38, 41 (2007).                            This abuse-of-

discretion       standard    of     review     involves      two    steps;     under    the

first,     we     examine    the        sentence     for    significant        procedural

errors, and under the second, we review the substance of the

sentence.       United States v. Pauley, 511 F.3d 468, 473 (4th Cir.

2007)     (examining        Gall,       552   U.S.     at    50-51).         Significant

procedural errors include “failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as

mandatory,        failing     to        consider     the    [18    U.S.C.]        § 3553(a)

[(2006)]        factors,     selecting        a     sentence       based     on     clearly

erroneous facts, or failing to adequately explain the chosen

sentence.”        Gall, 552 U.S. at 51.               If there are no significant

procedural         errors,         we      then      consider       the      substantive

reasonableness       of     the     sentence,        “tak[ing]      into    account     the

totality of the circumstances.”                Id.

             When the district court imposes a departure sentence,

we consider “whether the sentencing court acted reasonably both

with respect to its decision to impose such a sentence and with

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respect    to      the   extent     of      the    divergence              from   the   sentencing

range.”       United States v. Hernandez-Villanueva, 473 F.3d 118,

123 (4th Cir. 2007).             This court has recognized, however, that a

district      court’s      error       in    applying            a    departure       sentence       is

harmless      if     the    sentence         is       ultimately            justified        by    the

§ 3553(a) sentencing factors.                     United States v. Evans, 526 F.3d

155, 165 (4th Cir. 2008) (“[E]ven assuming the district court

erred    in     applying     the       Guideline           departure          provisions,         [the

defendant’s]         sentence,         which          is     well-justified             by        [the]

§ 3553(a)       factors,     is     reasonable.”);                   see    Puckett     v.    United

States, 129 S. Ct. 1423, 1432 (2009) (stating that “procedural

errors at sentencing . . . are routinely subject to harmlessness

review”).

              Citing United States v. Rybicki, 96 F.3d 754 (4th Cir.

1996), Batts argues that the district court erred in imposing an

upward     departure        under      USSG       § 5K2.9,            p.s.        However,        even

assuming the district court erred in upwardly departing under

USSG     § 5K2.9,        p.s.,    in     view         of    the       court’s      thorough         and

meaningful articulation of relevant § 3553(a) factors that also

justified the imposition of the 142-month sentence, we conclude

that the sentence is reasonable.

              We     therefore           affirm            the        amended      judgment          of

conviction.         We dispense with oral argument because the facts



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and legal contentions are adequately presented in the materials

before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                    AFFIRMED




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