                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 13-4982


UNITED STATES OF AMERICA,

                 Plaintiff – Appellee,

           v.

SHEIK PEARSON,

                 Defendant – Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Catherine C. Blake, District Judge.
(1:12-cr-00077-CCB-1)


Argued:   December 10, 2014                 Decided:   January 6, 2015


Before SHEDD, DIAZ, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Vincent Anthony Jankoski, VINCENT A. JANKOSKI, ESQ.,
Silver Spring, Maryland, for Appellant.     Evan Thomas Shea,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Sheik Pearson pled guilty to one count of money laundering.

The   district    court       calculated       Pearson’s    advisory       sentencing

Guidelines range to be 51-63 months. The court included in its

calculation      an   offense     level        reduction    for       acceptance     of

responsibility        under     U.S.S.G.        § 3E1.1(a),       but     it    denied

Pearson’s    motion     to     compel   the      government      to     move   for   an

additional       offense       level    reduction          for     acceptance        of

responsibility pursuant to § 3E1.1(b). 1 Ultimately, the court

varied downward from the advisory range and sentenced Pearson to

36 months. In doing so, the court stated that it would have

imposed the same 36-month sentence even if it had decided the

§ 3E1.1(b) issue in Pearson’s favor. Pearson now appeals the

sentence, arguing that the court erred by denying his motion to

compel the government to move for the § 3E1.1(b) reduction and

by failing to adequately consider 18 U.S.C. §§ 3553(a)(2)(A) and




      1
       Section 3E1.1(a) provides for a two-level decrease in a
defendant’s offense level if the defendant “clearly demonstrates
acceptance of responsibility for his offense.” Section 3E1.1(b)
provides for an additional one-level decrease only if the
government files an appropriate motion, but a district court may
compel the government to file such a motion if the government
had declined to do so without a proper reason. See United States
v. Divens, 650 F.3d 343, 350 (4th Cir. 2011). Had the district
court applied the § 3E1.1(b) reduction in this case, Pearson’s
advisory range would have been 46-57 months.



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3553(a)(6) in sentencing him to a longer term of incarceration

than his co-defendants received. We affirm.

       “Federal        sentencing        law   requires       the   district         judge    in

every case to impose ‘a sentence sufficient, but not greater

than     necessary,       to        comply     with’    the     purposes        of    federal

sentencing,       in    light       of   the   Guidelines       and     other    §    3553(a)

factors.” Freeman v. United States, 131 S.Ct. 2685, 2692 (2011)

(quoting     18   U.S.C.        §    3553(a)).      Under     the   current      sentencing

regime, “district courts may impose sentences within statutory

limits based on appropriate consideration of all of the factors

listed      in    §      3553(a),        subject       to     appellate         review       for

‘reasonableness.’” Pepper v. United States, 131 S.Ct. 1229, 1241

(2011).     “Reasonableness           review     has   procedural       and     substantive

components.” United States v. Mendoza–Mendoza, 597 F.3d 212, 216

(4th Cir. 2010). “Procedural reasonableness evaluates the method

used   to   determine       a       defendant’s     sentence.       .   .   .   Substantive

reasonableness examines 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).” Id.

       As noted, Pearson first contends that the district court

erred by not applying the § 3E1.1(b) additional offense level

reduction. “Failure to calculate the correct Guidelines range

constitutes procedural error.” Peugh v. United States, 133 S.Ct.

                                                3
2072, 2080 (2013). However, “as with most types of errors in a

criminal proceeding, ‘procedural errors at sentencing . . . are

routinely      subject       to    harmlessness         review,’”    United    States     v.

Hargrove, 701 F.3d 156, 161 (4th Cir. 2012), cert. denied, 133

S.Ct. 2403 (2013) (quoting Puckett v. United States, 556 U.S.

129, 141 (2009)); and the government argues (among other things)

that    any    error     in       the    court’s    §    3E1.1(b)     determination       is

harmless.

       A claimed procedural sentencing error is considered to be

harmless if the resulting sentence was not longer than that to

which the defendant would otherwise be subject. Hargrove, 701

F.3d at 161. In performing harmless-error review, we “may assume

that a sentencing error occurred and proceed to examine whether

the    error    affected       the       sentence     imposed.”      Id.    Thus,   we   may

affirm a sentence notwithstanding a claimed Guidelines error if

(1) we can glean from the record that the district court would

have reached the same result even if it had decided the disputed

Guidelines       issue    in       the    defendant’s        favor    and    (2)    we   can

determine      that    the    sentence        would     be   reasonable      even   if   the

disputed Guidelines issue had been decided in the defendant’s

favor. Id. at 162. We conclude that both steps of this analysis

are met in this case.

       Our     resolution         of    the   first      step   of    the    harmlessness

analysis is readily apparent from the district court’s comments

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at sentencing. After denying Pearson’s attempt to receive the

§ 3E1.1(b)    reduction,     the    court       expressly     stated    that   the   §

3E1.1(b) issue “was not of any determining significance to me in

my analysis of the [§] 3553(a) factors. The sentence I have come

to is the one that I think is appropriate, even if I am wrong

about the one point for acceptance of responsibility.” J.A. 494;

see   also    J.A.    495   (“I    would       impose   the    same    sentence.”).

Accordingly, we will proceed to the second step of the analysis,

under which we must decide whether the 36-month sentence would

be reasonable if, as Pearson contends, the advisory Guidelines

range was 46-57 months (rather than 51-63 months). 2

      The 36-month sentence represents a downward variance from

the   51-63   month    Guidelines     range      calculated     by     the   district

court, and it is below the 46-57 month Guidelines range proposed

by Pearson. As such, regardless of which Guidelines range is

correct, the sentence is presumptively reasonable, see United


      2
       In his written plea agreement, Pearson generally waived
the right “to appeal whatever sentence is imposed,” but he
reserved the right “to appeal the calculation of the offense
level under the advisory guidelines to the extent that it does
not include a one-level reduction under § 3E1.1(b).” J.A. 74.
The government argues that under this waiver we should review
Pearson’s challenge to the substantive reasonableness of his
sentence only if we first conclude that the district court erred
regarding § 3E1.1(b). In light of our application of the
harmless error analysis, under which we assume that the court
erred in its § 3E1.1(b) determination, we decline to enforce the
appeal waiver.



                                           5
States v. Susi, 674 F.3d 278, 289 (4th Cir. 2012), and Pearson

bears the burden to rebut the presumption by demonstrating that

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

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

(4th Cir. 2006). Pearson has failed to meet this burden.

     In our view, the district court adequately considered the

appropriate    factors       under      § 3553(a).    Turning       to     Pearson’s

specific challenge to the court’s treatment of the § 3553(a)

factors, we find no merit to his assertion that the court failed

to   adequately   consider        §§    3553(a)(2)(A)        and   3553(a)(6)      in

sentencing him to a longer term of incarceration than his co-

defendants received. See J.A. 490-92 (court’s explanation of the

relative   sentences).       On   this    point,     Pearson       is    essentially

asking us to substitute our judgment for that of the district

court, but we are not at liberty to do so. See United States v.

Evans,   526   F.3d   155,    160      (4th   Cir.   2008)    (noting      that   “an

appellate court must defer to the trial court and can reverse a

sentence only if it is unreasonable, even if the sentence would

not have been the choice of the appellate court” (emphasis in

original)).

     Based on the foregoing, we affirm the 36-month sentence.

                                                                            AFFIRMED




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