                                      PUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 18-4585


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

LARRY LAMAR NANCE,

                     Defendant - Appellant.


Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Louise W. Flanagan, District Judge. (5:17-cr-00404-FL-1)


Argued: December 10, 2019                                        Decided: April 21, 2020


Before GREGORY, Chief Judge, and NIEMEYER, and HARRIS, Circuit Judges.


Affirmed by published opinion. Judge Harris wrote the opinion, in which Judge Niemeyer
joined. Chief Judge Gregory wrote a separate opinion concurring in the judgment.


ARGUED: Jaclyn Lee DiLauro, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant. Evan Rikhye, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: G. Alan
DuBois, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney,
Jennifer P. May-Parker, Assistant United States Attorney, Thomas L. Crosby, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
PAMELA HARRIS, Circuit Judge:

       In 2018, Larry Lamar Nance pleaded guilty to two federal drug- and firearm-related

offenses, reserving his right to appeal a sentence in excess of the advisory Guidelines range.

The district court sentenced him to 123 months’ imprisonment, well above the Guidelines

range of 81 to 87 months.        Nance appeals, maintaining that his sentence is both

procedurally and substantively unreasonable. Finding no error, we affirm.



                                              I.

                                             A.

       The conduct for which Nance was prosecuted in this case began on April 25, 2017. 1

Police officers responding to a noise complaint at a Fayetteville, North Carolina residence

encountered several individuals, including Nance, in the front yard, along with six cars and

the “strong smell of marijuana.” J.A. 34. When the officers told the individuals that they

intended to lock down the residence and apply for a search warrant, Nance and others fled

the scene. After obtaining a warrant, the officers searched one of the cars, which belonged

to Nance, and found heroin, cocaine, and cocaine base. Nance was discovered hiding in a

neighbor’s shed, arrested on state charges, and then released the following day.




       1
         Except as otherwise noted, the facts in this opinion are taken from the
government’s factual basis in support of the plea agreement, see J.A. 34–36, the parties’
sentencing memoranda before the district court, see J.A. 39–64, and the Presentence
Investigation Report, see J.A. 109–124 (under seal).

                                              2
       Two days after that, Fayetteville police responded to a domestic disturbance

complaint from Nance’s former girlfriend, who reported that Nance was sitting in his car

in her driveway. She told the officers that Nance had “previously struck her and put a gun

to her head,” J.A. 49 n.5, and she was afraid that he was currently armed. When officers

approached the vehicle, Nance began driving forward and refused to comply with

instruction to stop and show his hands. One officer opened the passenger door to turn off

the engine and saw a black handgun on the passenger seat. After Nance was removed from

the vehicle and attempted unsuccessfully to flee, he was arrested. In addition to the gun –

a .45 caliber handgun with a bullet in the chamber – the officers recovered heroin and

marijuana from the car. Again, Nance was detained on state charges and then released the

following day.

       Based on these incidents, a federal grand jury returned a four-count indictment

charging Nance with drug and firearm offenses. Nance entered into a plea agreement with

the government, pleading guilty to Counts One and Three – possession with intent to

distribute cocaine, cocaine base, and heroin, in violation of 21 U.S.C. § 841(a)(1); and

using and carrying a firearm in furtherance of a drug-trafficking crime, in violation of 18

U.S.C. § 924(c)(1)(A) – in exchange for dismissal of the other two counts. Pursuant to the

plea agreement, Nance reserved the right to appeal a sentence in excess of the applicable

Guidelines range established at sentencing.

                                              B.

      Prior to sentencing, the United States Probation Office submitted a Presentence

Investigation Report (“PSR”) to the district court and the parties. The PSR recounted

                                              3
Nance’s “very unstable childhood,” during which he lived at different times with his

mother and father – both of whom were heavy drug users – and other relatives. J.A. 118.

The PSR noted that Nance has used drugs since age nine, beginning with marijuana and

later graduating to opiates and heroin.

       The PSR also described Nance’s long criminal history, and because that history

became the central issue at Nance’s sentencing, we recount it in detail here. First came a

block of offenses beginning in 2001, when Nance left school at age 16, and ending in 2005,

when Nance was 20. At age 16, Nance was charged with possession of a stolen motor

vehicle, breaking and entering, and larceny after breaking and entering. At age 18, he was

charged with possession with intent to manufacture, sell, or deliver cocaine. He pleaded

guilty to each of these offenses and was placed on probation. While on probation, at age

19, he was charged with burglary and kidnapping in connection with a single offense,

though the kidnapping charge later was dismissed.

       Then, in 2005, when Nance was 20 and on probation, he committed two more

offenses over a two-day period, conspiring to commit armed robbery and discharging a

weapon into an occupied vehicle. He pleaded guilty to those charges in 2006 and was

sentenced to 23 to 37 months’ imprisonment. In 2008, while serving that sentence, Nance

pleaded guilty to the earlier burglary charge and was sentenced to an additional 61 to 83

months’ imprisonment.

       As a result of this series of convictions, Nance was incarcerated from 2006 to 2013.

During that time, the PSR reports, he incurred 79 disciplinary infractions. Nance was



                                            4
released from custody to post-release supervision on July 12, 2013, when he was 28 years

old.

       According to Nance’s counsel, this 2013 release from prison was a turning point of

sorts in Nance’s history: From that time on, Nance, now an adult, purportedly committed

only non-violent offenses. And indeed, Nance’s next offense, committed six months after

his release, was marijuana possession, for which he was once again incarcerated; and the

one after that – committed in June of 2015 when Nance was 30, eight months after he was

released from custody a second time – was possession with intent to manufacture, sell, or

deliver marijuana.

       After that came the conduct at issue in this case – the April 2017 drug and firearm

offenses. Those offenses, as noted above, included the carrying of a firearm in furtherance

of a drug-trafficking crime, to which Nance pleaded guilty. The PSR also recounted two

other arrests that occurred during roughly the same time period, both of which stemmed

from violent incidents and both of which resulted in charges against Nance that ultimately

were dismissed. First, on February 2, 2017, Nance was charged with breaking and entering

to terrorize or injure and domestic criminal trespassing, after he allegedly broke into his

former girlfriend’s home and remained there after being ordered to leave. That charge was

dismissed when Nance was indicted for the instant offenses. And second, on May 17,

2017, Nance was charged with assault when he allegedly hit a female victim in the head

with his fist. That charge also was dismissed, this time because the witness – presumably,

the victim of the assault – did not make herself available to testify.



                                              5
       During this period, Nance was on probation stemming from his June 2015 drug

offense. Because Nance violated the terms of his supervision in multiple respects – failing

to meet his monetary obligations, failing to report as directed, testing positive for drug use,

failing to comply with his mental health intervention, and engaging in new criminal

conduct – his probation was revoked on May 23, 2017, and he was sentenced to 90 days’

custody. Some months after he was released in August of 2017, Nance was arrested on the

instant offenses, and he has been in custody since.

       Having recounted this extensive criminal history, the PSR calculated the appropriate

advisory Guidelines range. As to Count One – the drug offense – the PSR calculated a

base offense level of 12. See U.S.S.G. § 2D1.1. Deducting two levels for acceptance of

responsibility, see id. § 3E1.1(a), and applying a criminal history category of V in light of

the convictions discussed above, the probation officer determined that Nance’s advisory

Guidelines sentencing range on Count One was 21 to 27 months. On Count Three – the

§ 924(c) firearm offense – a mandatory sentence of 60 months consecutive to the sentence

on Count One would be imposed as required by statute. See 18 U.S.C. § 924(c)(1)(A),

(D)(ii); U.S.S.G. §§ 2K2.4, 3D1.1(b)(1). The effective Guidelines range, then, was 81 to

87 months. The PSR also suggested that the court might wish to consider an upward

departure, because the Guidelines calculation did not adequately reflect the severity of

Nance’s criminal history.

       The parties both filed sentencing briefs with the district court. The government

moved for an “upward departure and/or variance,” arguing that Nance’s Guidelines range

“fail[ed] to adequately reflect the seriousness of the Defendant’s criminal history and the

                                              6
strong likelihood that he will continue to commit crimes once released from custody.” J.A.

52. Among other factors, the government pointed to Nance’s “history of committing

crimes while he awaited trial for prior arrests or while under court supervision,” id. at 41;

dismissed charges for violent conduct that were not accounted for by the Guidelines

calculation; and Nance’s most recent arrest for a violent offense, in May of 2017, when he

was “arrested for striking a woman in the head with his fist.” Id. at 49. A sentence between

262 and 327 months, the government concluded, would be appropriate to “promot[e]

respect for the law and protect[] the public.” Id. at 52.

       Nance, in turn, argued for a sentence within the Guidelines range of 81 to 87 months.

Nance’s counsel recognized that “Nance’s criminal history is not short and [would] likely

give the Court pause.” Id. at 60. But counsel urged the court to view that history not as

one “uninterrupted violent criminal spree,” id. at 61, but rather as two distinct episodes:

The period before Nance’s 2006 incarceration, in which he engaged in violent criminal

offenses; and then the period beginning in 2013, when Nance was first released from

prison. Since 2013, counsel argued, although Nance had continued to commit criminal

offenses, they were “not of the same magnitude as his prior conduct,” and, in particular,

were not violent: “[T]here is no evidence [that Nance has] been a recidivist in terms of

violent crime.” Id. at 61.

                                             C.

       The district court conducted a lengthy sentencing hearing, beginning by describing

the Guidelines recommendation of 21 to 27 months on Count One, and the mandatory,

consecutive 60-month sentence on Count Three. The court also recognized at the outset

                                              7
the difficulties Nance suffered in his childhood – in particular, his early exposure to drugs

– and Nance’s drug addiction.

       The government then argued in support of its motion for an upward departure or

variance. Again, the government focused on Nance’s criminal history, contending that the

Guidelines criminal history score “simply doesn’t reflect the severity of his actions or the

danger that he poses to the community.” J.A. 70. It emphasized Nance’s 79 disciplinary

infractions while in custody, and that many of Nance’s offenses were committed while

other charges were pending or Nance was on probation – all of which, according to the

government, indicated a lack of respect for the law. The instant offenses, the government

concluded – the April 2017 gun and drug charges – were a case in point: Just days after

Nance was arrested on drug charges on April 25, he was arrested again, and again was

discovered with heroin. Id. at 71. As a result, the government requested that the court

sentence Nance to 262 to 327 months, which it recognized was a “big departure” from the

Guidelines range of 81 to 87 months. Id.

       The court then heard from Nance’s counsel, who likewise focused on Nance’s

criminal history. Counsel acknowledged at the outset that “the Court is probably concerned

by [Nance’s] criminal record, and I think that’s probably what is driving most of this

proceeding.” Id. at 73. But again, counsel urged the court to differentiate between Nance’s

earlier offenses and his later ones: All of Nance’s violent crimes occurred when Nance

was 20 or younger; and after he was incarcerated for those crimes in 2006 and then released

in 2013 at the age of 28, he had not “similarly recidivated” in the form of violent offenses.

Id. at 74. This de-escalation, counsel argued, had two implications: First, as to Nance’s

                                             8
culpability, neurological research “indicates that the frontal lobe, which is responsible for

impulse control, is not fully formed until [age] 25.” Id. Second, the lack of recent violent

offenses showed that Nance was now “capable of controlling himself,” id. at 77, and could

be rehabilitated. Accordingly, counsel concluded, a sentence in the Guidelines range,

which would keep Nance “under the oversight of the criminal justice system” until his “mid

40s,” would be sufficient. Id. at 75.

       The court then engaged Nance’s counsel in a comprehensive discussion, which

spans eight pages of the sentencing transcript and included a recess to acquire additional

information. See id. at 77–84. To start, the court challenged the core premise of counsel’s

argument: that Nance’s violent days were behind him once he was released from prison in

2013. The court pointed to Nance’s two arrests in 2017 on violent charges: one for

“breaking and entering to terrorize or injure, domestic criminal trespassing,” dismissed

only because he was indicted in the instant case; and one for “assault on a female,” not

pursued only “because the witness would not make herself available.” Id. at 78–79. Those

cases reflected Nance’s continued “assaultive tendencies,” the court determined, and were

highly relevant “in the context of an argument that says [Nance has] been able to control

himself” since his 2013 release. Id. at 78.

       The court also focused on Nance’s repeated supervised release violations and

violations of prison rules, as reflected by the 79 disciplinary infractions incurred during his

first incarceration. Again, counsel argued that Nance had shown an ability to change, and

that his most recent incarceration, which separated Nance from his two-year-old son, had

made him more “circumspect about his behavior” as he came to appreciate the importance

                                              9
of staying out of prison. Id. at 81. The district court addressed that argument directly,

taking it seriously enough to call for a brief recess so that information about Nance’s

current behavior while in custody could be obtained. With that information in hand – which

showed that in just the last month, Nance had been disciplined twice for exposing himself

and refusing to put on clothes, “failing multiple times to follow directions” – the court

concluded that instead of a change in attitude, Nance’s behavior reflected “the same old

same old.” Id. at 84.

       After Nance addressed the court, the district court imposed a sentence of 63 months

on Count One – substantially above the Guidelines range of 21 to 27 months – followed

by the mandatory consecutive 60-month sentence on Count Three, for a total term of 123

months’ imprisonment. That sentence, the court noted, though higher than the Guidelines

range, also was substantially lower than the government’s recommended 262 to 327

months: “I tempered the response. I think 123 months is sufficient.” Id. at 89.

       Addressing Nance, the court explained:

       [Y]ou’re a very dangerous person, and you have no respect for authority. I
       do not believe a sentence in the guideline range takes into consideration fully
       your background and your history and the extent of your criminal history, the
       likelihood of recidivism, the dangerousness of you.

Id. at 85–86. Referring to the Guidelines offense-level calculation, the court continued:

       So if I go forward from a level five to a six, 24 to 30 doesn’t capture it. It’s
       only when I go down to a level 17 that I begin to think that I’m in a range
       that will accomplish the purposes of sentencing. And if in error on my
       decision to depart, I reach the same number of 63 months on the first count
       under 18, United States Code, Section 3553, the need to promote respect for
       the law, to discourage this type of conduct, to protect the public is so
       compelling in this case.


                                             10
Id. at 86.

       The district court went on to recommend “the most intensive substance abuse

treatment program” available because Nance “really need[s] that help.” Id. at 87. The

court also recommended a comprehensive mental health evaluation: “You had some

serious things happen to you through no fault of your own as a child. But through fault of

your own you are continuing to act against society, against norms. You need somebody to

be helping you with mental health treatment.” Id. Finally, the court told Nance that it

would recommend him for education and vocational training and urged him to take

advantage of potential good-time credit by following directions while in custody.



                                             II.

                                             A.

       On appeal, Nance challenges his sentence, arguing that it is procedurally and

substantively unreasonable. We review the reasonableness of a sentence under 18 U.S.C.

§ 3553(a) using an abuse-of-discretion standard, regardless of “whether [the sentence is]

inside, just outside, or significantly outside the Guidelines range.” Gall v. United States,

552 U.S. 38, 41 (2007). First, we evaluate procedural reasonableness, determining whether

the district court committed any procedural error, such as improperly calculating the

Guidelines range, failing to consider the § 3553(a) factors, or failing to adequately explain

the chosen sentence. See id. at 51. If we determine that the district court has not committed

procedural error, only then do we proceed to assess the substantive reasonableness of the

sentence. Id. A review for substantive reasonableness takes into account the “totality of

                                             11
the circumstances” to determine “whether the sentencing court abused its discretion in

concluding that the sentence it chose satisfied the standards set forth in § 3553(a).” United

States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). Even if “the sentence is

outside the Guidelines range, the court may not apply a presumption of unreasonableness.

It may consider the extent of the deviation, but must give due deference to the district

court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.”

Gall, 552 U.S. at 51.

       With these governing principles in mind, we turn to the case at hand.

                                             B.

       We begin with Nance’s claim that his above-Guidelines sentence, characterized as

an upward variance, is procedurally unreasonable because the district court inadequately

articulated its reasons for the sentence. 2 We cannot agree with this assessment of the

district court’s efforts. The district court here conducted a thorough sentencing hearing,

engaging defense counsel’s arguments, explaining where it found them wanting, and


       2
          The degree to which the district court intended Nance’s 63-month sentence on
Count One as a departure, as well as a variance, is not entirely clear from this record. At
sentencing, as noted above, the court referred both to a departure and a variance; but in its
written statement of reasons, the court described Nance’s sentence only as a variance. We
need not resolve that question to decide this appeal. When, as here, a district court offers
alternate and independent justifications for imposing a sentence outside the Guidelines
range, we will uphold the sentence if one of those justifications is reasonable, regardless of
the validity of the other. See United States v. Rivera-Santana, 668 F.3d 95, 104 (4th Cir.
2012); United States v. Evans, 526 F.3d 155, 165 (4th Cir. 2008). So even assuming, as
Nance argues, that his sentence failed to comply with certain procedural requirements for
upward departures, we will affirm it if it is reasonable as an upward variance. And for the
reasons given below, we conclude that Nance’s sentence, understood as a variance, is both
procedurally and substantively reasonable.

                                             12
recessing so that additional relevant information could be considered. It imposed a

sentence individualized to Nance, taking account of the “characteristics of the defendant

and the facts of the case.” United States v. Blue, 877 F.3d 513, 518 (4th Cir. 2017). We

see no failure of procedural reasonableness on this record.

       As is well understood, to meet the procedural reasonableness standard, a district

court must “conduct an ‘individualized assessment’ of the facts and arguments presented

and impose an appropriate sentence,” and it must “explain the sentence chosen.” Blue, 877

F.3d at 518 (quoting Gall, 552 U.S. at 50). Specifically, a district court’s explanation

should “provide some indication [] that the court considered the § 3553(a) factors” and

applied them to the particular defendant, United States v. Montes-Pineda, 445 F.3d 375,

380 (4th Cir. 2006); see also Blue, 877 F.3d at 518, and also that it considered a defendant’s

nonfrivolous arguments for a lower sentence, see Montes-Pineda, 445 F.3d at 380; Blue,

877 F.3d at 518–19.

       Importantly, it is also well established that our review of a district court’s sentencing

explanation is not limited to the court’s statements at the moment it imposes sentence.

“[W]e do not evaluate a court’s sentencing statements in a vacuum.” Montes-Pineda, 445

F.3d at 381. Instead, we look at the full context, including the give-and-take of a sentencing

hearing. Id. Where a sentencing court hears a defendant’s arguments and engages with

them at a hearing, we may infer from that discussion that specific attention has been given

to those arguments. See Blue, 877 F.3d at 521. And where a sentence is tailored to address

individual characteristics – here, for instance, the requirement of drug treatment for Nance,

who struggles with drug addiction – we may infer consideration of the relevant personal

                                              13
characteristics under § 3553(a). See id. (citing United States v. Johnson, 445 F.3d 339, 346

(4th Cir. 2006)).

       Measured against that standard, the district court’s sentencing explanation was fully

sufficient. First, its statement at sentencing made clear that it was applying the § 3553(a)

factors – including the need to protect the public – to Nance’s specific characteristics and

criminal history: “[Y]ou’re a very dangerous person, and you have no respect for authority.

I do not believe a sentence in the guideline range takes into consideration fully your

background and your history and the extent of your criminal history, the likelihood of

recidivism, the dangerousness of you.” J.A. 85–86. And the court’s written statement of

reasons was to the same effect, referring specifically to the § 3553(a) factors and finding

Nance’s sentence necessary, among other things, to promote respect for the law, to afford

adequate deterrence, and to protect the public from further crimes of the defendant. See 18

U.S.C. § 3553(a).

       Second, in imposing sentence, the district court took account of personal

characteristics that the defense had identified as mitigating. In recommending mental

health treatment to address the effects of Nance’s very difficult childhood, for instance, the

district court recognized the “serious things” that Nance underwent as a child “through no

fault of [his] own,” but also concluded that Nance’s current “act[ing] against society,” by

contrast, was “through fault of [his] own.” J.A. 87. Likewise, the district court’s decision

to recommend Nance for “the most intensive substance treatment program” makes clear

that it considered Nance’s struggles with drug addiction. Id.; see Blue, 877 F.3d at 521



                                             14
(inferring consideration of mitigating argument from sentence tailored to address personal

characteristic).

       The most important issue at sentencing, of course, was Nance’s long criminal

history, see J.A. 73 (defense counsel opening by recognizing that Nance’s “criminal

record” is “what is driving most of this proceeding”), about which the defense advanced

one overarching mitigating argument: Although Nance’s early and youthful history was

marked by violent offenses, his more recent criminal conduct – after his release from prison

in 2013, at age 28 – was no longer violent, reflecting a new capacity for self-control and

potential for rehabilitation. The district court engaged with that argument directly and

repeatedly at the sentencing hearing. Perhaps most important, the transcript makes clear

that the court rejected the core premise for the argument, emphasizing Nance’s recent 2017

arrests – for breaking and entering with intent to terrorize or injure and domestic criminal

trespass, and for assault on a female – and the continued “assaultive tendencies” they

indicated, well past Nance’s initial term of incarceration. Id. at 78. Relatedly, the district

court expressly confronted the broader suggestion that the nature of Nance’s recent

offenses showed a willingness and ability to change. Indeed, the court even called a brief

recess to explore that argument further, and it was only after the court was armed with new

information about Nance’s persistent misconduct during his (then) current pretrial

detention that it determined the argument did not hold up to scrutiny.

       Faced with this thorough airing of his position at sentencing, Nance contends that

the district court nevertheless erred by neglecting to address certain specific claims made

in support of his general argument that his violent offenses are in his past and that he has

                                             15
since changed. We disagree. To start, several of the specific claims Nance identifies in

fact were expressly addressed and rejected by the district court, as we describe above. See

id. at 77–78 (rejecting argument that Nance has not exhibited violent behavior since his

2013 release from incarceration); id. at 82–84 (rejecting argument that time apart from his

two-year-old son inspired a change in Nance’s behavior). But more important, the district

court, having fully addressed Nance’s central thesis – that his purportedly de-escalating

criminal history made a Guidelines sentence appropriate – was not also required to address

separately each supporting data point marshalled on its behalf.

       Nance argues, for instance, that the district court offered no response when, to show

the non-violent nature of his more recent offenses, he pointed to the fact that the instant

§ 924(c) offense – carrying a firearm in furtherance of a drug-trafficking offense – did not

involve actual use of the gun. But there is nothing intrinsically mitigating about carrying

a firearm in connection with a drug-trafficking offense, whether or not the gun is fired; this

point is relevant only insofar as it supports Nance’s broader argument that his more recent

conduct is non-violent. Indeed, that is exactly the way counsel presented it, after the court

raised its concern about the “assaultive tendencies” demonstrated by Nance’s 2017 arrests:

       I understand the Court’s concern. I would point out that there is not a lot of
       evidence that he’s engaged in any type of violent burglary or using guns. I
       understand he’s got a gun charge in this case, but there is no evidence he
       used it. And all I’m saying to the Court is that I believe that there is some
       evidence of maturity, that there is some evidence of ability to change.

Id. at 78–79 (emphasis added). The precise nature of the offense conduct in this case, in

other words, was offered in support of Nance’s principal argument for a Guidelines

sentence: that the evolution of Nance’s criminal history indicates that he is unlikely to

                                             16
commit future violent offenses. And that argument, as we have explained, was thoroughly

considered by the district court.

       This is not to suggest, of course, that in evaluating a district court’s sentencing

explanation, we may guess at which arguments the court might have considered or assume

that the court “has silently adopted arguments presented by a party.” United States v.

Carter, 564 F.3d 325, 329 (4th Cir. 2009). We may not. But where, as here, the record

makes clear that the district court has meaningfully considered a defendant’s nonfrivolous

mitigating arguments, fulfilling its obligation to “provide a rationale tailored to the

particular case at hand and adequate to permit meaningful appellate review,” id. at 330

(internal quotation marks omitted), we will not require more. Cf. Mendoza-Mendoza, 597

F.3d at 218 (“It would be wholly contrary to the Supreme Court’s conferral of discretion

on trial courts if we were to play a game of ‘Gotcha!’ with respect to the sentencing

transcripts we review.”).

       In sum, the transcript of the sentencing proceeding indicates that in fashioning

Nance’s sentence, the court took into account Nance’s extensive criminal history, including

those offenses committed as an adult and after his 2013 release; his pattern of reoffending

upon release; his disciplinary infractions in custody and inability to comply with the terms

of his release; and the fact that the offenses of conviction occurred over the course of days,

in which he was arrested once, released, and then arrested again just days later. Given the

extent of the district court’s engagement with Nance’s counsel on these issues at

sentencing, we need not “guess at the district court’s rationale,” Carter, 564 F.3d at 329;

the court’s rationale is patently clear. Because the record allows us to determine that the

                                             17
court “considered the parties’ arguments and ha[d] a reasoned basis for exercising [its] own

legal decisionmaking authority,” Rita v. United States, 551 U.S. 338, 356 (2007), we

conclude that Nance’s sentence is procedurally reasonable.

                                              C.

       We turn next to Nance’s argument that his sentence is substantively unreasonable.

As described above, Nance’s original Guidelines range called for a sentence of 21 to 27

months’ imprisonment on his Count One conviction of possession with intent to distribute

cocaine, cocaine base, and heroin, followed by a mandatory 60-month consecutive

sentence on his Count Three firearm conviction under § 924(c), for a total of 81 to 87

months. Instead, the district court varied upward as to Count One, from 21 to 27 months

to 63 months, for a total of 123 months’ imprisonment. According to Nance, that sentence

is substantively too high, especially – again – given that his prior violent offenses date back

to his youth, while his conduct since his 2013 release from prison purportedly has not been

similarly violent.

       To assess this argument, we “examine[] the totality of the circumstances to see

whether the sentencing court abused its discretion in concluding that the sentence it chose

satisfied the standards set forth in § 3553(a).” Mendoza-Mendoza, 597 F.3d at 216. Where,

as here, the sentence is outside the advisory Guidelines range, we must “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. Howard, 773 F.3d 519, 529 (4th Cir. 2014) (internal quotation marks

omitted). That said, “district courts have extremely broad discretion when determining the

                                              18
weight to be given each of the § 3553(a) factors,” United States v. Jeffery, 631 F.3d 669,

679 (4th Cir. 2011), and the fact that a “variance sentence deviates,” even “significantly,”

from the Guidelines range “does not alone render it presumptively unreasonable,” United

States v. Rivera-Santana, 668 F.3d 95, 106 (4th Cir. 2012). Instead, we must “give due

deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the

extent of the variance.” Gall, 552 U.S. at 51.

       Here, the record reflects that the district court conducted a thorough, individualized

assessment of Nance and his offense conduct in light of the § 3553(a) factors, and we

cannot conclude that the court’s exercise of discretion in formulating Nance’s sentence is

unreasonable. For instance, and as discussed above, the district court carefully considered

Nance’s “history and characteristics,” 18 U.S.C. § 3553(a)(1), specifically recognizing

Nance’s difficult childhood and substance abuse issues at sentencing. And in considering

what sentence would promote respect for the law, afford adequate deterrence, and protect

the public, see id. § 3553(a)(2)(A), (B), (C), the district court heard and addressed Nance’s

argument that most of his prior convictions – and all for violent conduct – occurred before

he turned 25 years old, that he had not recidivated with similarly violent offenses, and that

his conduct since his 2013 release from prison illustrated a willingness to change and a

lack of future dangerousness.

       Relying heavily on our decision in United States v. Howard, 773 F.3d 519 (4th Cir.

2014), Nance maintains that the district court abused its discretion by placing too much

emphasis on his juvenile offenses. In Howard, we held that a district court abused its

discretion by imposing a life sentence – an extreme departure from the 121-month high

                                             19
end of the Guidelines range – based almost exclusively on a “stale criminal history” of

offenses, mostly non-violent, committed while the defendant was a teenager. Id. at 535.

By focusing excessively on crimes committed when the defendant was between 16 and 18

years of age, we reasoned, the district court had “failed to appreciate” both the diminished

culpability of juvenile offenders and the prospect that the “impetuousness and

recklessness” of youth may subside as individuals mature. Id. at 532 (internal quotation

marks omitted).

       We think this case is different. First and most important, Nance’s juvenile offenses

were not the sole, or even primary, basis for the district court’s decision to vary upward

here. To the contrary: As we have described in detail, most of the sentencing hearing was

given over to a discussion of Nance’s conduct as an adult, and whether it bore out defense

counsel’s central argument that Nance had left his youthful aggression behind and

demonstrated a capacity for maturity and change. The district court resolved that question

against Nance, but only after considering such factors as Nance’s “consistent pattern of

recidivism” after his first release from prison, when he was an adult, see Howard, 773 F.3d

at 530 (distinguishing case in which former juvenile offender “displayed a consistent

pattern of recidivism immediately upon release from prison”); the “assaultive tendencies”

illustrated by Nance’s 2017 arrests, when Nance was in his thirties, J.A. 78; and Nance’s

continued and then-current refusal to abide by prison regulations as an adult. Weighing

these considerations against Nance’s juvenile status when he committed his earlier

offenses, of course, is a matter of district court discretion: “While the consideration of one

§ 3553(a) factor to the exclusion of the others is not appropriate, it is not required that the

                                              20
district court somehow give all the different factors precisely equal weight. Sometimes

one factor will outweigh the others. Sometimes one factor will stand out.” United States

v. Fowler, 948 F.3d 663, 672 (4th Cir. 2020) (citations omitted).

       There are other significant distinctions, as well. It was important to our decision in

Howard that the life sentence imposed by the district court was far longer than the sentence

requested by the government. Howard, 773 F.3d at 533–35. Here, we have the reverse

situation: The sentence imposed by the district court is, to be sure, longer than the

Guidelines range, but it also is far shorter than the 262 to 327 months recommended by the

government. And finally, while we fully appreciate both the total length of the 123-month

sentence in this case and the degree of the district court’s deviation from the Guidelines on

Count One, Nance’s sentence remains substantially more modest than the life sentence we

considered in Howard. We routinely uphold as substantively reasonable larger deviations

producing longer sentences than this one. See, e.g., United States v. Myers, 589 F.3d 117,

120–23, 125–27 (4th Cir. 2009) (affirming an upward departure from 121 months to 360

months based on three stale convictions); United States v. Lawrence, 349 F.3d 724, 727

(4th Cir. 2003) (affirming upward departure from 96 to 262 months based in part on a

defendant’s “extensive juvenile record”). Of course, every case is different and every

sentence must be justified on its own facts. But the sentence here is not so obviously

outside the norm that it necessarily raises concerns about whether the district court has

“failed in its effort to comply with the aims of sentencing prescribed by § 3553(a)(2).”

Howard, 773 F.3d at 535.



                                             21
       Whether or not we would impose the same sentence as the district court is not the

question before us. See Gall, 552 U.S. at 51 (“The fact that the appellate court might

reasonably have concluded that a different sentence was appropriate is insufficient to

justify reversal of the district court.”). Mindful of our deferential standard of review and

considering the totality of the circumstances, we conclude that the district court did not

abuse its discretion in finding that Nance’s significant criminal history and potential to

recidivate warranted a significant upward variance.



                                            III.

       For the foregoing reasons, the judgment of the district court is affirmed.

                                                                              AFFIRMED




                                            22
GREGORY, Chief Judge, concurring:

       As the majority opinion notes, enhancing Nance’s sentence was initially raised in

Nance’s Presentence Investigation Report, in the context of a departure. The district court

referred to the enhancement to Nance’s sentence as both a variance and a departure; but as

the majority explains, under this Court’s precedent, we can affirm the sentence if either

ground is proper. I concur in affirming Nance’s sentence as a variance because the district

court considered his conduct in prison and after release in weighing the § 3553 sentencing

factors. I write, however, to emphasize the significance of Nance’s argument regarding

delayed brain development in the context of a departure based on an extensive youthful

criminal history.

       At sentencing, Nance’s counsel argued that Nance’s convictions should not be the

driving factor for his sentence because the frontal lobe is not fully developed until the age

of twenty-five, and that Nance’s most recent violent criminal convictions occurred when

he was twenty. Indeed, the frontal lobe is one of the last areas of the brain to develop, well

into the twenties. Sarah B. Johnson, Robert W. Blum & Jay N. Giedd, Adolescent Maturity

and the Brain: The Promise and Pitfalls of Neuroscience Research in Adolescent Health

Policy, Journal of Adolescent Health, 45 J. Adolescent Health 216 (2009). This part of the

brain is responsible for important functions such as “planning, organizing information, and

thinking about possible consequences of action.” Elizabeth S. Scott & Thomas Grisso,

Developmental Incompetence, Due Process, and Juvenile Justice Policy, 83 N.C. L. Rev.

793, 812 (2005).



                                             23
       There are limited grounds that permit a district court to depart from the specified

guidelines range, one being a defendant’s criminal history. U.S.S.G. § 4A1.3(a) (allowing

for a departure if the defendant’s calculated criminal history category underrepresents the

seriousness of the defendant’s criminal history or there is a likelihood the defendant will

commit other crimes). For an upward departure to be procedurally proper—where the

primary reason for the enhancement is the defendant’s youthful criminal history—the

record must demonstrate the district court considered the mitigating argument of

diminished culpability due to an undeveloped frontal lobe in determining whether the

calculated criminal history does “underrepresent” the seriousness of the defendant’s

criminal history.




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