                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 13-4898


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

WILLIS SARVIS,

                 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. (7:11-cr-00083-D-1)


Submitted:   December 1, 2014              Decided:   February 4, 2015


Before KING, DIAZ, and HARRIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.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, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Willis        James    Sarvis          appeals    the    district     court’s

judgment imposing a sentence of life plus 360 months following a

guilty plea to possession of a firearm by a felon, 18 U.S.C.

§§ 922(g)(1) and 924 (2012) (Count Two); and a jury trial for

distribution of phencyclidine, 21 U.S.C. § 841(a)(1), (b)(1)(C)

(2012) (Count One); and possession of a firearm in furtherance

of a drug trafficking crime, 18 U.S.C. § 924(c) (2012) (Count

Three).    Sarvis raises several challenges to his convictions and

sentences.    We affirm.

                                             I.

           First,        Sarvis        argues        that     the     district       court

erroneously denied his motion to suppress.                          We review factual

findings underlying a district court’s denial of a motion to

suppress   for     clear   error       and    its    legal    conclusions       de    novo.

United States v. Foster, 634 F.3d 243, 246 (4th Cir. 2011).

Because the district court denied the motion to suppress, we

construe     the    evidence      in    the       light     most    favorable    to    the

Government, the party prevailing below.                     United States v. Black,

707 F.3d 531, 534 (4th Cir. 2013).

           Sarvis does not dispute that the facts as testified to

at the suppression hearing could establish probable cause for

his   arrest,      but   argues     that      this     testimony       was   inherently

incredible.         However,      we     “defer       to     the    district     court’s

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credibility findings.”              United States v. Griffin, 589 F.3d 148,

150   n.1     (4th    Cir.    2009)       (internal          quotation        marks    omitted).

Accordingly, we discern no error in the district court’s denial

of Sarvis’ motion to suppress.

              Next, Sarvis argues that the Government violated his

due process rights through its discovery disclosures and lack

thereof; he further contends that the district court should have

sanctioned the Government.                  Because he failed to preserve this

claim by objecting in the district court, our review is for

plain    error.        United       States       v.    Olano,      507    U.S.      725,    731-32

(1993); see United States v. Henderson, 133 S. Ct. 1121, 1126

(2013).        We    discern       no    plain       error    in    the       district     court’s

actions       here.         The     court    credited             the    testimony         of    the

detective,          thereby       concluding           that       no     police       misconduct

occurred.       Moreover, Sarvis has failed to sufficiently allege

what,    if    any,     documents         were        not    timely       disclosed        by    the

Government and what prejudice resulted therefrom.

              Sarvis        next        challenges          the     sufficiency            of    the

indictment      as     to     Count      Three,        arguing         that    it   erroneously

charged the two separate crimes contained in the statute as a

single      crime.       As    Sarvis       acknowledges,              this    claim     is     also

reviewed for plain error. See Olano, 507 U.S. at 731-32.                                          We

“will     construe      the       indictment          liberally         and     indulge         every

intendment in support of its sufficiency.”                                United States v.

                                                 3
King, 628 F.3d 693, 699 (4th Cir. 2011) (internal alterations

and quotation marks omitted).

               We discern no error, much less plain error, in the

indictment.            Sarvis   argues       that   the    use    of    the      conjunctive,

rather      than   disjunctive,         in    the     indictment        is    insufficient.

However, “where a statute is worded in the disjunctive, federal

pleading requires the Government to charge in the conjunctive.”

United States v. Montgomery, 262 F.3d 233, 242 (4th Cir. 2001).

               Sarvis     similarly         contends      that    the     district       court

constructively          amended   the       indictment     when     it       instructed    the

jury on the elements of Count Three, using the disjunctive even

though      the    indictment          is    worded    conjunctively.               We    have

previously held, however, that “[w]hen the Government charges in

the conjunctive, and the statute is worded in the disjunctive,

the district court can instruct the jury in the disjunctive.”

United States v. Robinson, 627 F.3d 941, 958 (4th Cir. 2010)

(internal quotation marks omitted).                        Accordingly, we find no

error in the court’s instruction.

                                              II.

               Sarvis next raises several challenges to his sentence.

We    review      sentences      for    reasonableness           “under      a   deferential

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

38,    41    (2007).        We    first       ensure      that    the     district       court

committed         no     “‘significant         procedural         error,’”          including

                                               4
improper       calculation          of       the     Guidelines     range,        insufficient

consideration          of     the        §    3553(a)       factors,        and     inadequate

explanation of the sentence imposed.                        United States v. Lynn, 592

F.3d 572, 575 (4th Cir. 2010) (quoting Gall, 552 U.S. at 51).

               Sarvis argues that the district court’s application of

the second-degree murder cross reference was improper, asserting

four separate arguments.                     First, he argues that the death was

not relevant conduct.               Relevant conduct for Guidelines purposes

includes, as relevant here, “all acts and omissions committed,

aided,    abetted,          counseled,         commanded,       induced,      procured,      or

willfully caused by the defendant . . . that occurred during the

commission      of     the     offense        of       conviction.”         U.S.    Sentencing

Guidelines Manual § 1B1.3(a)(1); see United States v. Ashford,

718   F.3d      377,        383   (4th        Cir.      2013)   (holding          that   murder

cross-reference applied where the act satisfied § 1B1.3(a)(1)).

In Ashford, we rejected the very argument Sarvis presses: that

murder    is    not     a    groupable         offense      under     §     1B1.3(a)(2)      and

therefore the cross-reference cannot apply.                               See 718 F.3d at

382-83.    Therefore, we conclude that the death here was properly

included as relevant conduct.

               Sarvis next challenges the sufficiency of the evidence

supporting       the        cross-reference,             arguing    that      he     acted   in

self-defense.          We review the district court’s factual findings

for   clear     error       and   its        legal     conclusions     de    novo.       United

                                                   5
States v. Medina-Campo, 714 F.3d 232, 234 (4th Cir. 2013).                        We

conclude, however, that application of the second-degree murder

cross-reference was proper because Sarvis could not colorably

assert self-defense under either federal or North Carolina law.

            Next,     Sarvis      asserts      that    the      district     court

improperly     double       counted      the   murder     by      applying     the

cross-reference and relying on the murder to determine his life

sentence    for    Count    Three.       “Double     counting     occurs   when    a

provision of the Guidelines is applied to increase punishment on

the basis of a consideration that has been accounted for by

application of another Guideline provision or by application of

a statute.”        United States v. Reevey, 364 F.3d 151, 158 (4th

Cir. 2004).       There was no impermissible double counting here.

            Sarvis argues that the district court was required, as

a matter of due process, to establish the facts supporting the

cross-reference        under      a     heightened     standard      of    proof.

(Appellant’s Br. 42-43).          However, we have previously held that

“the due process clause does not require the district court to

find uncharged conduct by a heightened standard of proof before

using it as a basis for determining a defendant’s sentence.”

United States v. Grubbs, 585 F.3d 793, 802 (4th Cir. 2009).                       We

therefore    conclude      that   the    cross-reference     to    second-degree

murder was properly applied.



                                          6
               Sarvis next asserts that the district court erred by

treating § 5G1.2(d) of the Guidelines as mandatory.                               We conclude

that the district court clearly understood that the provisions

of the Guidelines were advisory and exercised its discretion in

imposing consecutive sentences.

               Sarvis       argues    that    the       district        court        failed    to

adequately      explain       its    chosen       sentence.          In    evaluating         the

sentencing court’s explanation of a selected sentence, we have

consistently held that, while the district court must consider

the    statutory      factors       and   explain       the    sentence,        it    need    not

“robotically tick through” every § 3353(a) factor on the record,

particularly         when     the    court    imposes         a    sentence       within      the

properly calculated Guidelines range.                     United States v. Johnson,

445    F.3d    339,     345   (4th    Cir.    2006).          At    the    same      time,    the

district court “must make an individualized assessment based on

the    facts    presented.”           Gall,       552    U.S.      at     50.        While    the

“individualized         assessment        need    not    be       elaborate     or     lengthy,

. . . it must provide a rationale tailored to the particular

case    at     hand     and    adequate      to     permit         meaningful         appellate

review.”       United States v. Carter, 564 F.3d 325, 330 (4th Cir.

2009) (internal quotation marks omitted).

               The    district       court       here    thoroughly         explained         its

sentencing decision.            The court noted that Sarvis’ crimes were

extraordinarily serious, and endangered the lives of the people

                                              7
living    in       the   community         where      the    offenses        occurred.        The

district       court       also    relied        upon    Sarvis’       extensive       criminal

history    and      lack     of    work        history   and       noted    that    Sarvis     had

squandered the leniency shown to him in the past.

               Finally,       Sarvis            argues       that      his     sentence         is

substantively unreasonable.                     If we find a sentence procedurally

reasonable, we also must examine its substantive reasonableness,

considering “the totality of the circumstances, including the

extent of any variance from the Guidelines range.”                                   Gall, 552

U.S. at 51.          The sentence imposed must be “sufficient, but not

greater than necessary,” to satisfy the purposes of sentencing.

18 U.S.C. § 3553(a) (2012).                       A within-Guidelines sentence is

presumed       reasonable         on     appeal,      and     the    defendant      bears     the

burden    to       “rebut    the       presumption          by   demonstrating       that     the

sentence is unreasonable when measured against the § 3553(a)

factors.”          United States v. Montes-Pineda, 445 F.3d 375, 379

(4th   Cir.     2006)       (internal          quotation     marks     omitted).         When    a

district      court      imposes       a   sentence         that    falls    outside     of   the

applicable Guidelines range, however, we consider “whether the

sentencing         court    acted        reasonably         both    with     respect    to     its

decision      to    impose        such     a    sentence     and     with    respect     to    the

extent of the divergence from the sentencing range.”                                     United

States    v.    Hernandez-Villanueva,                 473    F.3d    118,     123   (4th      Cir.

2007).

                                                  8
           We   conclude       that   the   district     court’s     sentence   was

reasonable.     Although the court focused on the offense conduct,

the court noted it had considered all of the § 3553(a) factors.

The offense conduct here was egregious; Sarvis fired at least

fifteen rounds from a high-powered assault rifle in a public

housing complex after a drug deal went bad, killing one person

and resulting in bullets entering nearby homes and vehicles.                    As

the district court noted, Sarvis had committed several prior

drug   trafficking     and   violent    crimes.         Thus,   we   conclude   the

sentence was substantively reasonable.

                                       III.

           Accordingly, we affirm the district court’s judgment.

We   dispense   with    oral    argument      because    the    facts   and   legal

contentions are adequately presented in the material before this

court and argument will not aid the decisional process.

                                                                         AFFIRMED




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