                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 15-4750


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

           v.

LEVELLE GRANT,

                 Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:14-cr-00412-DCN-1)


Argued:   October 26, 2016                Decided:   December 16, 2016


Before THACKER and HARRIS, Circuit Judges, and Gerald Bruce LEE,
United States District Judge for the Eastern District of
Virginia, sitting by designation.


Affirmed by unpublished opinion.        Judge Harris       wrote   the
opinion, in which Judge Thacker and Judge Lee joined.


ARGUED: Howard Walton Anderson III, LAW OFFICE OF HOWARD W.
ANDERSON    III,    LLC,   Pendleton,    South   Carolina,    for
Appellant. Michael Rhett DeHart, OFFICE OF THE UNITED STATES
ATTORNEY,   Charleston,  South   Carolina,   for  Appellee.     ON
BRIEF: William Nettles, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PAMELA HARRIS, Circuit Judge:

       Levelle Grant pleaded guilty to two counts of possession of

a firearm in a school zone in violation of 18 U.S.C. § 922(q).

The district court sentenced Grant to ten years’ imprisonment,

the statutory maximum.          The court also imposed a three-year term

of supervised release, along with a $100 special assessment on

each count.

       Grant does not challenge his convictions under § 922(q),

but he does appeal his sentence.              According to Grant, his three-

year supervised-release term and the $100 monetary assessments

are    contrary    to    the    plain   language       of   §    922(q)ʹs         penalty

provision and thus unlawful.            Grant also contends that his ten-

year    prison     sentence       is    procedurally            and        substantively

unreasonable.      Finding no reversible error, we affirm.



                                        I.

       During a period of less than one year in 2013 and 2014,

Grant, who previously had been convicted of felony offenses, was

apprehended      three   times    while       in    possession        of    a    firearm.

First, in May 2013, law enforcement in Colleton County, South

Carolina,   attempted      to    initiate       a    traffic     stop       of   Grant’s

vehicle.    Grant accelerated to over 100 mph, forced another car

to the side of the road, and eventually crashed.                             The police

searched the vehicle and found a .45 caliber handgun, marijuana,

                                          2
a set of scales, and cash.               Grant was arrested and charged with

state crimes including possession of a firearm by a felon.

      Two subsequent incidents involved firearm possession near a

school.     In September 2014, investigators interviewed Grant’s

girlfriend, who admitted that she recently had bought a Jimenez

9mm pistol for Grant.             She then agreed to place a recorded call

to Grant and asked him to deliver the pistol to her.                          At a Wal-

Mart that was within 1,000 feet of a middle school, Grant gave

the   gun   to      his     girlfriend,         who    turned    it    over    to    law

enforcement.

      The   final    incident          occurred   in   February       2014,   when   the

South Carolina Highway Patrol attempted to stop Grant’s vehicle

on an interstate highway.               Grant accelerated to speeds of 80 to

90 mph before eventually stopping on a side street, within 1,000

feet of an adult education center.                      During a search of his

vehicle,    police        found    a    loaded    semi-automatic        Hi-Point     9mm

handgun.      Grant       again    was     arrested     and     charged   with      state

crimes.

      Grant was indicted in the District of South Carolina with

three counts of possession of a firearm by a convicted felon,

see 18 U.S.C. § 922(g)(1), and as an armed career criminal, see

18 U.S.C. § 924(e).           Violations of § 922(g) ordinarily carry a

maximum sentence of ten years’ imprisonment and no mandatory

minimum.    18 U.S.C. § 924(a)(2).                But when a defendant has at

                                            3
least three prior convictions for a “violent felony,” the Armed

Career    Criminal        Act    (“ACCA”)     calls      for    a    mandatory          minimum

sentence of fifteen years.                  18 U.S.C. § 924(e).                  The parties

agreed that the ACCA fifteen-year minimum applied to Grant, by

virtue    of    three     prior    South      Carolina     convictions             of   second-

degree burglary.

       Because those burglary convictions occurred in the 1990s

when Grant was a juvenile, however, the government believed that

a     fifteen-year       sentence      was    unwarranted.               Accordingly,        it

allowed     Grant        to   plead      guilty     instead         to   two       counts    of

possession of a firearm in a school zone, § 922(q), punishable

by a maximum sentence of five years on each count, § 924(a)(4).

The    government    informed         Grant   that    it    intended          to    seek    that

statutory       maximum         penalty,      for    a     total         of      ten    years’

imprisonment.            With     Grant’s     consent      to   the        agreement,       the

government      filed     a     superseding       indictment,        and      Grant     pleaded

guilty to two violations of § 922(q).

       Grant’s presentence report (“PSR”) calculated an advisory

Guidelines range of 18 to 24 months for his convictions under §

922(q).        But consistent with its representations during plea

negotiations, the government filed a motion to deviate from that

range in favor of the ten-year statutory maximum.                             Specifically,

the government sought a departure under U.S.S.G. § 5K2.21, which

provides    that     a    court    may     depart    upward     from       the     Guidelines

                                              4
range based on conduct underlying charges dismissed in a plea

agreement.        It    also    sought     an    upward   variance,       or   deviation

above   the      Guidelines       range    based    on     an   assessment      of       the

sentencing factors set out in 18 U.S.C. § 3553(a).                        The variance

was warranted, the government argued, under § 3553(a) factors

such as the need to protect the public and promote respect for

law, in light of Grant’s pattern of dangerous conduct.                          Grant’s

counsel,    on    the    other     hand,    asked    the    court    to    consider        a

sentence within the Guidelines range, while acknowledging that

even the upper end of that 18- to 24-month range might be “too

light.”    J.A. 69.

     At the sentencing hearing, the district court started out

by putting the proposed ten-year sentence in context:                          “I think

everybody     agrees       that    but     for     [the    government’s]        .    .    .

generosity . . . Mr. Grant would certainly be going to jail for

at least 15 years, if not more, because there’s a mandatory

minimum of 15.”         J.A. 76.       The court then analyzed the statutory

sentencing       factors    of     §   3553(a),      including      the    nature        and

circumstances of Grant’s § 922(q) offenses; Grant’s history and

characteristics; and the need, through sentencing, to reflect

the seriousness of Grant’s offense, promote respect for law, and

protect the public.            See 18 U.S.C. § 3553(a).          In applying those

factors, the court emphasized that Grant repeatedly, over the

course of less than a year, engaged in illegal possession of a

                                            5
firearm; that he involved his girlfriend in a felony; and that

he fled from the police in a manner that endangered others.

Invoking both U.S.S.G. § 5K2.21 and a variance pursuant to the §

3553(a)     factors,    the    district        court    sentenced      Grant        to     the

maximum statutory term of 60 months for each of his two § 922(q)

violations,    served     consecutively,         for    a    total     of    ten     years’

imprisonment.

      The    district    court     also    imposed       a    three-year           term     of

supervised     release     under      18       U.S.C.    §     3583,        and     special

assessments of $100 for each count under 18 U.S.C. § 3013.                                Both

of those penalties rested on the premise that Grant’s § 922(q)

convictions     were     for    felony     offenses.            See     18        U.S.C.     §

3583(b)(2)–(3)(maximum         supervised       release       term    of    three     years

for Class C and D felonies, one year for misdemeanors); id. at §

3013(a)(1)–(2) (maximum assessment of $100 for felonies, $25 for

classified misdemeanors).           Grant’s PSR listed a maximum three-

year term for supervised release and a $100 special assessment,

and   those    penalties       were    discussed         at     Grant’s       plea         and

sentencing hearings.          At no point did Grant object to § 922(q)’s

treatment as a felony for sentencing purposes.

      This timely appeal followed.




                                           6
                                                II.

       Grant’s first contention on appeal is that the district

court improperly classified his § 922(q) convictions as felonies

rather than misdemeanors for the purpose of determining his term

of supervised release and special assessment.                                 Because Grant

failed     to    raise     this    argument          before   the    district      court,   we

review for plain error only.                    United States v. Aplicano-Oyuela,

792 F.3d 416, 422 (4th Cir. 2015).                       An error is plain if it is

contrary        to   the   settled        law    of     the    Supreme   Court       or    this

circuit.         United States v. Carthorne, 726 F.3d 503, 516 (4th

Cir. 2013).          Even then, it may be corrected only if it affects

substantial          rights       and     “seriously          affects        the   fairness,

integrity or public reputation of judicial proceedings.”                                    See

Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016)

(internal quotation marks and citation omitted).

       Grant’s argument rests on the interplay of three statutory

provisions.           As   noted        above,       under    18    U.S.C.    §    3583,    the

authorized term of supervised release for a Class D felony is

capped at three years, while the maximum term for a misdemeanor

is   one        year.      And    similarly,          under    18   U.S.C.     §   3013,    the

special assessment for a felony is $100, while the assessment

for a misdemeanor ranges from $25 for a Class A misdemeanor to

nothing for a misdemeanor without a letter grade.                             In imposing a

term     of      three     years’        supervised           release    and       two     $100

                                                 7
assessments, in other words, the district court treated Grant’s

§ 922(q) convictions as Class D felonies.

       How    to    classify       offenses       for    sentencing       purposes       is

governed by a separate statute, 18 U.S.C. § 3559.                          Under that

provision, any “offense that is not specifically classified by a

letter grade in the section defining it” is classified by “the

maximum      term   of   imprisonment            authorized,”    with      an     offense

punishable     by   “less   than       ten   years      but   five   or   more        years”

treated as a Class D felony and any offense punishable by one

year or less as a non-felony.                 See 18 U.S.C. § 3559(a)(4),(6)–

(9).    So under § 3559, Grant’s convictions under § 922(q), each

punishable by a maximum of five years’ imprisonment, normally

would be classified as Class D felonies.

       But Grant points to a final statute, 18 U.S.C. § 924(a)(4),

which establishes the penalty for a § 922(q) violation.                                That

provision     authorizes       a    five-year       maximum     sentence        and    then

states:      “Except for the authorization of a term of imprisonment

of not more than 5 years made in this paragraph, for the purpose

of any other law a violation of § 922(q) shall be deemed to be a

misdemeanor.”         Id.   at     §   924(a)(4)        (emphasis    added).            That

language, Grant argues, is perfectly plain, directing that “for

the purpose” of § 3583 (supervised release) and § 3013 (special

assessments) – undoubtedly laws “other” than § 924(a)(4) – his §

922(q) convictions are to be treated as misdemeanors, subject to

                                             8
no more than a one-year term of supervised release and to no

special assessments at all.

      The       First     Circuit        recently            rejected      precisely           this

argument, on plain error review, in United States v. Alvira-

Sanchez, 804 F.3d 488, 494-95 (1st Cir. 2015), cert. denied, 136

S. Ct. 2030 (2016).               As in this case, the district court in

Alvira-Sanchez          treated    a     §    922(q)        offense     as    a    felony       for

purposes of imposing a three-year term of supervised release

under § 3583 and a $100 assessment under § 3013.                                       The First

Circuit     acknowledged          that       an       interpretation         of    §     922(q)’s

penalty     provision      allowing          this      result   “may    not       be   the     most

persuasive reading.”              Id. at 495.               Nevertheless, it concluded

that any error committed was not plain, in light of imprecision

in   the    statutory      framework         and      the    fact   that     other       district

courts     also    have    treated       §    922(q)         offenses    as       felonies     for

sentencing purposes.          Id.

      We agree.           As the government argues, though it “is not

immediately obvious” on the face of § 922(q), Appellee Br. at 8,

it is perhaps possible to read that provision in conjunction

with § 3559’s classification scheme in a way that would make §

922(q) a felony offense.                 Section 3559, the government notes,

governs     any    “offense       that       is    not      specially    classified          by    a

letter grade in the section defining it.”                           18 U.S.C. § 3559(a).

Because     §     922(q)’s    penalty             description       refers        only    to      “a

                                                  9
misdemeanor” and does not use a letter grade, the government

reasons,     §   3559(a)’s      default     classification       system     applies,

classifying a § 922(q) offense by reference to its maximum term

of imprisonment.

      Like    the    First      Circuit,    we    cannot     conclude     that    this

interpretation is so plainly erroneous as to warrant reversal

absent a properly preserved objection.                    No case from the Fourth

Circuit – or any other federal court of appeals – has adopted

Grant’s reading of § 922(q)’s penalty provision.                        Nor has any

district court within the Fourth Circuit. 1                  Instead, a number of

courts have taken the same approach as the district court here,

treating § 922(q) offenses as felonies for sentencing purposes.

See, e.g., United States v. Nieves-Castano, 480 F.3d 597, 599

(1st Cir. 2007) (§ 922(q) offender sentenced to three-year term

of supervised release); United States v. Handy, 8 F.3d 20, 1993

WL 455551 (5th Cir. 1993) (unpublished table decision) (same);

Hough v. United States, No. 3:13–cv–143–FDW, 2015 WL 127881, at

*1   (W.D.N.C.      Jan.   8,    2015)    (unpublished)       (same).      That    the

government’s     understanding       of    §     922(q)    appears   to   have    been

      1Grant can cite only one district court decision treating a
§ 922(q) violation as a misdemeanor for purposes of supervised
release – and that decision, we note, also appears to have
treated the same § 922(q) violation as a felony for purposes of
the special assessment. See United States v. Rivera-Concepcion,
No. CRIM. 07-169 CCC, 2007 WL 1852608, at *2 (D.P.R. June 25,
2007) (limiting supervised release in connection with a § 922(q)
violation to one year, but imposing a $100 special assessment).


                                           10
adopted by a handful of courts – without any analysis, we note –

does not mean that it is correct.                      But as the First Circuit

explained in Alvira-Sanchez, “that other courts have fallen prey

to   the   same    error,    if   error       indeed     there    was    here,   [does]

demonstrate that any misconstruction on the part of the district

court was not obviously erroneous.”                   804 F.3d at 495.       On plain

error review, that is enough to dispose of Grant’s claim.



                                            III.

      We turn now to Grant’s challenge to his ten-year prison

sentence    as    procedurally     and       substantively       unreasonable.        We

review the reasonableness of a sentence under the deferential

abuse of discretion standard.                United States v. Lynn, 592 F.3d

572, 579 (4th Cir. 2010).          This court first assesses whether the

district     court    committed        any        procedural     errors,   which     may

include incorrectly calculating the Guidelines range, failing to

adequately       consider   the   §     3553(a)       factors,     or    providing   an

insufficient justification for the sentence.                       United States v.

Lymas, 781 F.3d 106, 111 (4th Cir. 2015) (citing Gall v. United

States,    552     U.S.     38,   51        (2007)).       If     the    sentence    is

procedurally       reasonable,         we     then      review     its     substantive

reasonableness in light of the totality of the circumstances.

Gall, 552 U.S. at 51.



                                             11
       As   noted    above,   the    district   court,   invoking      both    a    §

5K2.21 departure and a variance under § 3553(a), sentenced Grant

to the ten-year statutory maximum for two § 922(q) offenses,

well above the advisory Guidelines range of 18 to 24 months.

With    respect      to   procedural    reasonableness,       Grant’s    primary

argument is that the district court erred by failing to address

separately     the    §   5K2.21    departure   and   the   variance    when       it

explained    its     sentencing     decision.     According    to   Grant,     the

district court was required to first rule on the government’s

request for a departure under § 5K2.21, and only then consider

any    potential     variance   under   §    3553(a)’s   sentencing     factors.

Because the court did not adhere to this sequence, Grant argues,

it failed to adequately explain what portion of its sentence was

based on a departure as opposed to a variance.

       We rejected a nearly identical claim in United States v.

Diosdado-Star, 630 F.3d 359, 364-65 (4th Cir. 2011).                    In light

of Rita v. United States, 551 U.S. 338 (2007), and Gall v.

United States, 552 U.S. 38 (2007), we reasoned, “the practical

effects of applying either a departure or a variance are the

same,” and the method by which a district court deviates from an

initial Guidelines range affects neither the justification that

court must provide nor the appellate review in which we engage.

630 F.3d at 365.           Whether a district court has relied on a

departure or a variance is “irrelevant,” we concluded, so long

                                        12
as    either    is   justified,    and     there      is    no    requirement    that   a

district court address a potential departure before considering

a variance.          Id. at 366.      Whether it applies a departure, a

variance, or both, what matters is only that the district court

give “serious consideration to the extent” of any deviation and

“adequately explain the chosen sentence.”                         Id. (quoting Gall,

552 U.S. at 46, 50); United States v. Evans, 526 F.3d 155, 164

(4th Cir. 2008) (review of sentence does not depend on whether

departure or variance provides the basis for a deviation).

       Under     that   standard,     we     can      find       no    fault   with   the

sentencing procedures of the district court.                          At the sentencing

hearing,       the   district    court     provided        a     lengthy   and   careful

explanation for its upward deviation, analyzing Grant’s history

and the details of his offenses under the § 3553(a) factors.

The    district      court’s    obligation      was    to      “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 and citations

omitted), and it has amply satisfied that obligation here. 2




       2
       Grant also objects to certain isolated comments made by
the government and the district court during sentencing. Taken
in context, those comments do nothing to detract from the
adequacy of the district court’s explanation and are not
otherwise problematic.


                                           13
     Finally,      we     consider            the       substantive      reasonableness          of

Grant’s sentence.         We are mindful that Grant’s ten-year sentence

represents    a    substantial              upward       deviation       from    the     advisory

Guidelines range of 18 to 24 months, and that the justification

for a sentence must “support the degree of the variance,” with a

“major     departure      .       .     .     supported       by     a    more        significant

justification      than       a       minor    one.”         Evans,       526    F.3d       at   161

(quoting Gall, 552 U.S. at 50).                         At the same time, a significant

deviation from the Guidelines range does not render a sentence

presumptively unreasonable, and we show “due deference to the

district court’s decision that the § 3553(a) factors, on the

whole,   justify    the       extent          of    the    variance.”           Id.    at   161-62

(quoting Gall, 552 U.S. at 51).

     Taking into account the “totality of the circumstances,” as

we must, id. at 161, we find no abuse of discretion in the

district    court’s     sentencing             determination.             As     the     district

court emphasized at the start of Grant’s sentencing hearing, the

ten-year     sentence         it       ultimately          imposed       was     substantially

shorter than the fifteen-year mandatory minimum Grant would have

faced under his original indictment, but for the plea agreement

offered by the government.                  Section 5K2.21 of the Guidelines, on

which the district court relied, addresses just this situation,

and allowed for an upward departure based on the § 922(g) felon-

in-possession      charges            dismissed           under    the     plea        agreement.

                                                   14
Moreover, as the district court emphasized, Grant had a lengthy

criminal   history,   engaged   in   a     repeated   pattern    of   unlawful

possession of a firearm over a short period of time, had in his

car   items   indicative   of    drug       distribution,       involved   his

girlfriend in his illegal activities, and twice initiated high-

speed and dangerous car chases that put others at serious risk.

Under the “deferential abuse-of-discretion standard,” Evans, 526

F.3d at 166 (quoting Gall, 522 U.S. at 41), we have no ground to

disturb the district court’s judgment that a ten-year prison

sentence was warranted in this case.



                                     IV.

      For the foregoing reasons, we affirm the judgment of the

district court.

                                                                      AFFIRMED




                                     15
