                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-5038


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RASHIAD ROBINSON, a/k/a Day Day, a/k/a D,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:11-cr-00012-JPB-DJJ-1)


Submitted:   April 30, 2012                   Decided:   May 3, 2012


Before WILKINSON, KING, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Kristen M. Leddy, Research and Writing Specialist, Nicholas J.
Compton, Assistant Federal Public Defender, Martinsburg, West
Virginia, for Appellant.     William J. Ihlenfeld, II, United
States Attorney, Erin K. Reisenweber, Assistant United States
Attorney, Martinsburg, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                  Rashiad Robinson appeals his sentence of 151 months of

imprisonment imposed following his guilty plea to distributing

cocaine       base,      in   violation   of      21     U.S.C.    § 841(a)       (2006).

Robinson contends that the district court erred in declining to

apply       the    various    statutory   amendments        effected      by    the   Fair

Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220, 124 Stat.

2372, when calculating his Guidelines range.                        The Government,

although not conceding error, submits that any such error was

harmless.         We agree, and accordingly affirm. *

                  When    considering      whether         preserved           procedural

sentencing           errors     like    the       one     alleged        here     require

resentencing, we apply a harmless error standard.                              See United

States       v.     Boulware,    604    F.3d      832,    838     (4th    Cir.     2010).

Accordingly, we may affirm a sentence despite a district court’s

procedural sentencing error if the Government can demonstrate

that the error “did not have a substantial and injurious effect

or influence on the result and we can say with fair assurance

        *
       Whether the FSA applies to defendants like Robinson who
were sentenced after the FSA’s August 3, 2010 effective date but
whose offense conduct occurred prior to that date will be
considered by the Supreme Court in Dorsey v. United States, __
U.S. __, 2011 WL 3422126 (U.S. Nov. 28, 2011) (No. 11-5683), and
Hill v. United States, ___ U.S. ___, 2011 WL 3472365 (U.S. Nov.
28,   2011)    (No.   11-5721)   (consolidated   with   Dorsey).
Nevertheless, we may resolve Robinson’s appeal without reaching
the issue.



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that”    the     district    court’s       sentence      was     not    affected       by   the

error.     Id. (internal quotation marks and alterations omitted).

               Here, assuming, without finding, error by the district

court,     the    Government        is    able     to    carry    this        burden.       In

pertinent part, the FSA increased the threshold quantities of

cocaine     base       needed      to     trigger       certain       statutory      maximum

sentences.         Had      the    district        court     applied        these    amended

statutory      maximums      in    Robinson’s        case,      his     Guidelines      range

would have been 151 to 188 months’ imprisonment, appreciably

lower     than    the    188      to     235-month      range     the       district    court

calculated        at     Robinson’s         sentencing.               See     21     U.S.C.A.

§ 841(b)(1)(B)-(C)          (West       1999   &   Supp.     2011);      U.S.      Sentencing

Guidelines Manual (“USSG”) § 4B1.1(a)-(b) (2010); USSG ch. 5,

pt. A. (sentencing table).

               However, when sentencing Robinson, the district court

departed downward two levels, to reach “the same effect as if

[the court had] found that the Fair Sentencing Act applied.”

Accordingly,       because        the    district       court    elected       to   sentence

Robinson as though the FSA applied to him, despite its finding

that the FSA did not so apply, Robinson received the benefit of

the FSA.         We can thus say with fair assurance that Robinson’s

sentence was not affected by the alleged error.

               Therefore, we affirm the judgment below.                         We dispense

with oral argument because the facts and legal contentions are

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adequately   presented   in   the   materials   before   the   court   and

argument would not aid the decisional process.

                                                                AFFIRMED




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