                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-5030


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

ERASTO GOMEZ-JIMENEZ,

                Defendant - Appellant.



                             No. 13-4059


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

AARON JUAREZ-GOMEZ,

                Defendant - Appellant.



Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh.     James C. Dever III,
Chief District Judge. (5:11−cr−00375−D-2; 5:11−cr−00375−D-1)


Argued:   January 28, 2014                 Decided:   April 24, 2014


Before NIEMEYER, GREGORY, and AGEE, Circuit Judges.
Affirmed by published opinion. Judge Agee wrote the opinion, in
which Judge Niemeyer joined.     Judge Gregory wrote a separate
opinion concurring in part and dissenting in part.


ARGUED: Paul K. Sun, Jr., ELLIS & WINTERS LLP, Raleigh, North
Carolina, for Appellant Erasto Gomez-Jimenez; Joseph Bart
Gilbert, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellant Aaron Juarez-Gomez. Joshua L. Rogers,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee. ON BRIEF: Thomas P. McNamara, Federal Public
Defender, Stephen C. Gordon, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina,
for Appellant Aaron Juarez-Gomez. Thomas G. Walker, United
States Attorney, Jennifer P. May-Parker, Yvonne V. Watford-
McKinney, Assistant United States Attorneys, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.




                               2
AGEE, Circuit Judge:

     Before      the    court       are   two   related   cases   that     we    have

consolidated.      In    one     case,     Erasto   Gomez-Jimenez        (“Erasto”)

appeals    the   district       court’s     judgment    sentencing   him    to    180

months’ imprisonment by challenging the application of several

sentencing enhancements. In the other case, Aaron Juarez-Gomez

(“Juarez-Gomez”) seeks review of two of the six counts of which

he was convicted and also argues that the district court erred

in   the   application         of     several    sentencing   enhancements        in

determining his sentence of 390 months’ imprisonment.

     For the reasons set forth below, we affirm the judgment of

the district court in each case.



                                            I

     Sergeant Todd Marshburn, an officer with the Raleigh, North

Carolina Police Department, received a tip from an informant

regarding a man selling cocaine in the Raleigh area. Upon Sgt.

Marshburn’s       request,          the     informant     introduced        another

individual, the confidential informant (“CI”), to the suspected

drug dealer. The CI arranged to meet the suspect at a Burger

King restaurant to purchase 14 grams of cocaine.

     At the time of the arranged meeting, Juarez-Gomez arrived

at the Burger King driving a yellow, four-door Chevrolet S-10

truck with a personalized, North Carolina license plate that

                                            3
read       “GOMEZ.” 1    The   CI   purchased            13.7   grams   of   cocaine       from

Juarez-Gomez for $500 and took Juarez-Gomez’s phone number to

arrange future meetings directly.

       The next day, the CI contacted Juarez-Gomez and asked to

purchase another 14 grams of cocaine. Juarez-Gomez agreed to

make another sale in the parking lot of a grocery store. Juarez-

Gomez arrived at the parking lot in the same yellow truck and

exchanged 14.1 grams of cocaine for $500 with the CI. During

this meeting, the CI asked Juarez-Gomez if he was able to sell a

solid piece of cocaine rather than powder cocaine. Juarez-Gomez

indicated that he had only powder cocaine but provided the CI

with       a   small    sample      of   crack       cocaine.      Following    the        drug

transaction, Raleigh Police Detective Jeffrey Marbrey and other

officers followed Juarez-Gomez, who eventually led them to a

mobile home, where the officers observed the parked yellow truck

adjacent to the trailer.

       The following day, the CI arranged to purchase 28 grams of

cocaine from           Juarez-Gomez.      The       CI    met   Juarez-Gomez    at     a    gas

station, where Juarez-Gomez arrived in the same yellow truck.

Juarez-Gomez exchanged 27.9 grams of cocaine for $900 with the

CI, who asked Juarez-Gomez to sell him greater quantities of

       1
       Officers later checked the motor vehicle registration of
the truck and found that it was not registered to Juarez-Gomez,
but the truck matched the description that the informant
previously gave police of the suspect's vehicle.


                                                4
cocaine, stating that he had “lots of money” and did not want to

have to meet every day to purchase smaller amounts. Juarez-Gomez

told the CI that he would introduce him to his boss for that

purpose.

     Following   the    drug   transaction,   Detective   Marbrey   again

followed Juarez-Gomez to the trailer and parked in a position

that allowed observation of the road to the trailer. Detective

Marbrey then made contact with the landlord of the trailer, and

asked the landlord to call him when the yellow truck left the

trailer.

    The next day, the CI again arranged to meet with Juarez-

Gomez to purchase two ounces of cocaine for $2,000. About one

hour before the meeting, the landlord called Detective Marbrey

and informed him that the yellow truck had left the trailer.

Juarez-Gomez arrived at the location of the drug sale in the

same yellow truck, entered the CI’s vehicle, and began speaking

with the CI. Upon the CI’s signal, officers took both men into

custody and seized two ounces of cocaine, one gram of crack, and

an additional small amount of powder cocaine from the headliner

of the yellow truck.

     Following the arrest, police officers approached the mobile

home and knocked on the door. A.G., a minor later revealed to be

Juarez-Gomez’s   son,    answered   the   door   and   granted   officers

permission to enter the trailer. At that point, officers noticed

                                    5
another man in the trailer, Erasto Gomez-Jimenez. At the same

time, Pedro Gomez-Jimenez (“Pedro”) fled the trailer into the

surrounding woods, but was pursued and apprehended by police.

     A.G.     then    consented        to     a   search     of    the   trailer   for

narcotics. Officers conducted a cursory search of the trailer

for safety and observed, in plain view, digital scales, clear

plastic   bags,      and   a   pistol.      Officers       then   obtained   a   search

warrant and conducted a full search of the trailer. Among other

things, officers found over 700 grams of crack cocaine, a ledger

of drug sales, pictures of Pedro posing with firearms, a small

amount of marijuana, five kilograms of powder cocaine (some in

brick form), several cell phones, several firearms, 1615 grams

of liquid cocaine, and over $55,000 cash. Officers also found a

rental receipt for the trailer in A.G.’s wallet and an electric

bill for the trailer bearing Erasto’s name.

     A cooperating witness (“CW”) provided officers additional

information     regarding        the    drug      activities       of    Juarez-Gomez,

Pedro, and Erasto. The CW stated that he engaged in a number of

drug transactions with Pedro and Erasto together, and that A.G.

attended several of these drug deals. The CW further stated that

he met Pedro and A.G. at a storage facility where Pedro was

extracting     cocaine         base    from       liquid     cocaine     with    A.G.’s

assistance.



                                            6
       Juarez-Gomez, Pedro, and Erasto were then named in a seven-

count      indictment     filed   in     the   Eastern      District    of    North

Carolina. Count One charged all three men with conspiracy to

distribute and possess with intent to distribute 280 grams or

more of cocaine base and five kilograms or more of cocaine in

violation of 21 U.S.C. §§ 841(a)(1) & 846. Counts Two through

Five charged Juarez-Gomez with distribution of a quantity of

cocaine     on     four   separate     dates   in    violation     of   21   U.S.C.

§ 841(a)(1). Count Six charged all three men with possession

with intent to distribute 280 grams or more of cocaine base and

five kilograms or more of cocaine and aiding and abetting the

same in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.

Count      Seven    charged   Juarez-Gomez          with   being   an   alien    in

possession of a firearm in violation of 18 U.S.C. §§ 922(g)(5) &

924.

       Without the benefit of a plea agreement, Pedro and Erasto

pleaded guilty to Counts One and Six. 2 Juarez-Gomez pleaded not

guilty to all counts and proceeded to a trial by jury, where he



       2
       The district court held a sentencing hearing for Pedro,
sentencing him to 180 months' imprisonment on Counts One and
Six. Pedro appealed his sentence, and we affirmed in a separate
proceeding. See United States v. Gomez-Jimenez, No. 12-5009,
2013 WL 5977153 (4th Cir. Nov. 12, 2013). No aspect of Pedro's
guilty plea or sentence is before us in this appeal. References
to Pedro herein are for the purpose of analyzing the evidence in
regard to the issues raised by Juarez-Gomez and Erasto.


                                          7
was found guilty of Counts One through Six and not guilty of

Count Seven.

      The United States Probation Office prepared a presentence

investigation         report   (“PSR”)     for       each    defendant.      In    Erasto’s

PSR, the probation officer concluded that he was accountable for

8,463.62    grams      of   cocaine      and       732.15    grams   of   cocaine        base,

resulting in a base offense level of 34. The probation officer

applied     a    two-level     enhancement          for     possession    of   a    firearm

pursuant to section 2D1.1(b)(1) of the United States Sentencing

Guidelines (the “Guidelines”). Another two-level enhancement was

applied for the use of a minor under Guidelines section 3B1.4,

but   three      levels     were   subtracted         under    section      3E1.1(b)      for

acceptance       of   responsibility,          giving       Erasto   a    total     offense

level of 35.

      The       probation      officer     concluded          that   Erasto        had    one

criminal history point, resulting in a criminal history category

of I. Based upon the total offense level of 35 and criminal

history category of I, the probation officer concluded that the

Guidelines       recommended       range   of       imprisonment      was    168    to    210

months.     Erasto      objected      to   the        two-level      enhancements          for

possession of a firearm and for use of a minor.

      At his sentencing hearing, Erasto argued that there was no

evidence of A.G.’s participation in the conspiracy beyond his

presence at the trailer, which he argued was insufficient to

                                               8
warrant   the     enhancement      for    use   of    a    minor.   In     response,

government counsel argued that the use of a minor enhancement

applied because A.G. had paid rent on the trailer, accompanied

Erasto to drug deals, and lived in the trailer with Erasto where

the drugs and firearms were seized. The district court concluded

that Erasto took “an affirmative act to involve a minor in the

offense charged,” specifically having A.G. accompany him on drug

deals.    (J.A.    No.       12-5030     157–58.)     In     overruling    Erasto’s

objection, the district court stated that the facts presented

were enough to allow the court to draw a reasonable inference

that Erasto used A.G. in the commission of his offenses and that

A.G.’s involvement was more than mere presence.

     Erasto’s      counsel     further     argued     that    the   only   evidence

linking   him     to   the    firearms     found     in    the   trailer    was   his

presence at the trailer when he was arrested. The district court

concluded that the enhancement applied because in addition to

his presence in the trailer at the time of his arrest, the

energy bills for the trailer were in his name.

     The district court then considered the factors listed in 18

U.S.C. § 3553(a), finding that Erasto actively participated in

the conspiracy, possessed with intent to distribute both cocaine

and cocaine base, and had entered a criminal enterprise to make

money as a drug dealer. Further, the district court concluded

that the large quantity of drugs combined with the presence of

                                          9
firearms     indicated     that       the    enterprise          was     not   a   small

operation. In announcing a sentence of 180 months’ imprisonment

for Erasto, the district court stated:

            I do believe that I have calculated the
            advisory guideline[s] range properly. If,
            however, it’s determined that I have not, I
            announce pursuant to [United States v.
            Keene, 470 F.3d 1347 (11th Cir. 2006), and
            United States v. Savillon-Matute, 636 F.3d
            119 (4th Cir. 2011)], that I would have
            imposed this same sentence as an alternative
            variant sentence in light of all the 3553
            factors.

(J.A. 12-5030 170.)

     Juarez-Gomez’s PSR found him accountable for 8,575.88 grams

of cocaine and 733.55 grams of cocaine base, resulting in a base

offense level of 34. The probation officer applied a two-level

enhancement for possession of a dangerous weapon pursuant to

Guidelines       section    2D1.1(b)(1).           In    addition,        a    two-level

enhancement      was   applied    under      section         3B1.1(c)    for   being    an

organizer, leader, manager, or supervisor of criminal activity

and a further two-level enhancement for use of a minor under

section 3B1.4.

     The     probation     officer      reviewed         Juarez-Gomez’s         criminal

history, finding seven felony convictions and three misdemeanor

convictions,      resulting      in   six        criminal      history    points.      Two

points    were    added    to    Juarez-Gomez’s          criminal       history    score

because    he    committed      the    offenses         of    conviction       while   on


                                            10
supervised release, thereby yielding a criminal history category

of IV. Based upon a total offense level of 40 and a criminal

history category of IV, the Guidelines range of imprisonment was

between 360 months to life for Counts One and Six and 240 months

for Counts Two through Five.

     Juarez-Gomez objected to the PSR, contending that he did

not live at the trailer and should not be held accountable for

the drugs, money, and firearms found there. He also objected to

the leadership and use of a minor enhancements, but provided no

explanation for those objections.

     At     Juarez-Gomez’s          sentencing     hearing,     the    Government

presented testimony that Juarez-Gomez had personally leased the

trailer and that his son, A.G., paid rent on the trailer “from

time to time.” (J.A. No. 13-4059 476.) The government presented

further testimony that officers found a rental receipt for the

trailer in A.G.’s wallet and that A.G. identified one of the

bedrooms      in   the    trailer    as    belonging     to   Juarez-Gomez.      The

testimony further showed that A.G. assisted Pedro in extracting

cocaine base from liquid cocaine.

     After     hearing     argument       from   both   parties,    the    district

court     found    that     the     evidence      established      Juarez-Gomez’s

participation in a drug conspiracy based in the trailer. Based

upon this finding, the district court concluded that Juarez-

Gomez   was    properly    held     accountable    for    the   contents    of   the

                                          11
trailer and that the PSR’s drug weight calculation was accurate.

With respect to the leadership enhancement, the district court

found    that   Juarez-Gomez        was,    at       the    least,    “the     organizer,

leader,    manager,     or    supervisor        of    his    son[,    A.G.,]     who   was

residing in” the trailer that Juarez-Gomez leased. The district

court    further     found   that    Juarez-Gomez           sent   A.G.   to    make   the

rental payments on the trailer. Although there was no evidence

that Juarez-Gomez claimed a larger share of the fruits of the

conspiracy than his co-conspirators, the district court found

that Juarez-Gomez involved A.G. in the conspiracy and was aware

of A.G.’s role in it.

        As to the use of a minor enhancement, the district court

found that Juarez-Gomez had enlisted A.G. in the drug conspiracy

by having him pay rent on the trailer and by having him live in

the trailer, which was used as a drug stash house. The district

court also found that A.G.’s attendance and participation in

drug deals with Pedro and Erasto was reasonably foreseeable to

Juarez-Gomez.

        The district court then considered the factors listed in 18

U.S.C. § 3553(a) and sentenced Juarez-Gomez to concurrent terms

of imprisonment of 390 months on Counts One and Six and 240

months on Counts Two through Five. The district court stated

that,     although    it     believed      it    had       properly   calculated       the

Guidelines range, it would have imposed the same sentence as a

                                           12
variant sentence pursuant to Keene, 470 F.3d 1347, Savillon-

Matute, 636 F.3d 119, and United States v. Hargrove, 701 F.3d

156 (4th Cir. 2012).

     Erasto and Juarez-Gomez have each timely appealed. We have

jurisdiction    pursuant    to    28    U.S.C.     § 1291     and     18    U.S.C.

§ 3742(a) as to each appeal.



                                       II

     On appeal, Juarez-Gomez challenges the sufficiency of the

evidence supporting his conviction on Count One, conspiracy to

distribute and possess with intent to distribute 280 grams or

more of cocaine base and five kilograms or more of cocaine and

Count Six, aiding and abetting the same. 3 He also challenges the

procedural    reasonableness     of    his   sentence,      arguing    that     the

district court erred in applying the section 3B1.4 use of a

minor enhancement as well as the section 3B1.1(c) leadership

enhancement.

     Erasto    challenges   the       procedural   reasonableness          of   his

sentence, arguing that the district court erred in applying the

section 2D1.1(b)(1) possession of a dangerous weapon enhancement

and the section 3B1.4 use of a minor enhancement. Erasto also


     3
       Juarez-Gomez does not challenge his convictions on Counts
Two through Five. His convictions on those counts are thus final
and not part of this appeal.


                                       13
challenges        the     substantive           reasonableness           of    his    sentence,

arguing      that       his   Guidelines          range     resulted          only    from     the

quantity of drugs found in the trailer, rather than from his

conduct or criminal history.



             A       Juarez-Gomez: Sufficiency of the Evidence

       When considering a criminal defendant’s challenge to the

sufficiency of the evidence supporting his conviction, we “must

uphold [the jury’s] verdict if there is substantial evidence,

viewed in the light most favorable to the Government, to support

it.” United States v. Cardwell, 433 F.3d 378, 390 (4th Cir.

2005).    “Substantial             evidence           is    that        evidence       which     a

‘reasonable         finder      of     fact      could      accept       as    adequate        and

sufficient to support a conclusion of a defendant’s guilt beyond

a reasonable doubt.’” Id. (quoting United States v. Burgos, 94

F.3d 849, 862 (4th Cir. 1996) (en banc)). “In our inquiry, the

Government is given ‘the benefit of all reasonable inferences

from   the       facts    proven     to    those       sought      to    be    established.’”

United    States         v.   Allen,      491    F.3d      178,    185    (4th       Cir.    2007)

(quoting United States v. Tresvant, 677 F.2d 1018, 1021 (4th

Cir. 1982)).

       To prove conspiracy, the government must demonstrate beyond

a reasonable doubt (1) an agreement between two or more persons

to engage in conduct that violates a federal drug law, (2) the

                                                 14
defendant’s knowledge of the conspiracy, and (3) the defendant’s

knowing     and    voluntary          participation         in   the      conspiracy.         See

United States v. Hackley, 662 F.3d 671, 678 (4th Cir. 2011).

Such an agreement need not be formal and may instead be a “tacit

or    mutual      understanding           between         the      defendant         and      his

accomplice.”        Id.          at      679         (quotation          marks       omitted).

“Circumstantial        evidence         alone        is   sufficient         to    support     a

conviction for conspiracy.” Id. “The same evidence establishing

a    defendant’s      participation            in     a   conspiracy        may     support    a

conclusion     that    a    defendant          participated         in      the   principal’s

unlawful intent to possess and distribute drugs, thereby proving

guilt of aiding and abetting as well.” United States v. Burgos,

94 F.3d 849, 873 (4th Cir. 1996).

       On   appeal,    Juarez-Gomez             argues      that      the    only    evidence

linking him to the trailer’s drug activity was testimony that

police      followed       him        there     after      he      completed        two    drug

transactions. Further, Juarez-Gomez argues that the government

did not prove at trial that A.G. was his son, that Juarez-Gomez

lived in the trailer, or that Juarez-Gomez was observed to be

physically     present      inside       the        trailer. 4   In    sum,       Juarez-Gomez


       4
       The government did not present evidence at trial that
Juarez-''Gomez had personally leased the trailer. This evidence
was only tendered at the sentencing hearing and thus is not
considered in the sufficiency of the evidence analysis on Counts
One and Six.


                                               15
argues     that     evidence    that       he    stopped      at       the   trailer     for    an

undetermined period of time following two drug transactions did

not    constitute      substantial          evidence          to    support        the    jury’s

verdict      against   him     on    Count       One,      conspiracy        and   Count    Six,

aiding and abetting.

       Notwithstanding         his    argument,         Juarez-Gomez           concedes     that

the government “presented strong evidence of his guilt on the

four counts of the indictment that alleged he sold or attempted

to sell cocaine.” (Opening Br. 30.) Juarez-Gomez simply contends

that despite this strong, and uncontested, evidence of guilt

with respect to Counts Two through Five, the government has not

presented substantial evidence linking him to the trailer and,

thus, the conspiracy or aiding and abetting. Yet Juarez-Gomez

fails to recognize that the government also presented conclusive

evidence that the trailer in question was a drug stash house

filled with large quantities of cash, cocaine, and firearms, and

used   for    the    storage,       processing,         and      packaging       for     sale   of

cocaine.      The     government’s          trial       evidence         established        that

Juarez-Gomez        drove    to      the    trailer         as     a    final      destination

following two cocaine sales, drove from the trailer to a third

cocaine      sale,     and     stayed       at       the    trailer          overnight. 5       The


       5
       The record reflects that the government presented evidence
at trial sufficient to permit the jury to draw a reasonable
inference that Juarez-Gomez stayed at the trailer overnight. The
(Continued)
                                                16
government also presented sufficient evidence to allow the jury

to infer that Juarez-Gomez’s son, A.G., lived in the trailer. 6

This evidence permitted the jury to draw one of two conclusions:

either Juarez-Gomez did not enter the trailer or conduct any

significant business there, or Juarez-Gomez was connected to the

contents of        the   trailer    as   well    as   the   individuals   residing

therein.

      Where physical facts and evidence are capable of more than

one interpretation and reasonable inferences therefrom can be

drawn     by   a   jury,    its    verdict     should   not   be   disturbed.   See

Glasscock v. United States, 323 F.2d 589, 591 (4th Cir. 1963).

It   is   the      jury’s   duty    to   weigh    contradictory     evidence    and



government provided testimony indicating that Juarez-Gomez drove
to and stopped at the trailer for an extended period of time on
two separate days after drug sales. On the second day that
Juarez-Gomez drove to the trailer, Detective Marbrey asked the
landlord of the trailer to notify him when the yellow truck left
the trailer. The landlord called Marbrey the next morning when
the truck had departed the trailer, permitting the jury to draw
the reasonable inference that Juarez-Gomez stayed at the trailer
overnight.
     6
       The government presented both argument and evidence at
trial sufficient to permit the jury to conclude that A.G. was
Juarez-Gomez's son. The government presented evidence that A.G.
shared his father's name and that officers informed A.G. that
his father, Juarez-Gomez, had been arrested at the time of the
search. At trial, Juarez-Gomez objected to a line of questioning
revealing that A.G. shared his father's name on grounds of
hearsay. The district court overruled that objection, and
Juarez-Gomez does not challenge the district court's evidentiary
rulings on appeal. Moreover, A.G. was repeatedly referred to as
Juarez-Gomez's son, or as "Junior," at trial with no objection
from Juarez-Gomez. (See J.A. 208–10, 211, 279.)


                                          17
inferences, pass on the credibility of witnesses, and draw the

ultimate factual conclusions. When there is substantial evidence

to support the jury’s verdict, as there is in this case, the

verdict should not be set aside, even if we were inclined to

draw contrary inferences. Id. at 591.

      Here,     the    government’s     evidence     provided   the    jury    with

enough    circumstantial         evidence—Juarez-Gomez’s      drug    sales,     his

frequent and extended presence at the trailer, his minor son’s

living situation at the trailer, and the drug-stash contents of

the   trailer—to       support    the   jury’s    factual   determination      that

Juarez-Gomez was involved in a conspiracy with, and aided and

abetted, the person or persons residing in the trailer. In other

words, the jury had sufficient evidence to conclude that Juarez-

Gomez’s    involvement       in     several      cocaine    sales    supported    a

reasonable inference that his repeated visits to a drug stash

house were less than coincidental. Because we are required on

appeal to construe all facts and reasonable inferences in favor

of the government, we conclude that the jury’s verdict must be

upheld.



            B         Juarez-Gomez: Use of a Minor Enhancement

      “[W]e review the district court’s sentencing procedure for

abuse of discretion, and must reverse if we find error, unless

we can conclude that the error was harmless.” United States v.

                                         18
Lynn, 592 F.3d 572, 581 (4th Cir. 2010). In determining whether

the district court properly calculated the Guidelines range, we

“review the district court’s legal conclusions de novo and its

factual findings for clear error.” United States v. Layton, 564

F.3d 330, 334 (4th Cir. 2009).

     Under     section      3B1.4   of    the    Guidelines,    a     defendant’s

offense level will be increased by two levels when the defendant

“used or attempted to use a person less than eighteen years of

age to commit the offense or assist in avoiding detection of, or

apprehension       for,    the   offense.”      U.S.S.G.   § 3B1.4.     “Used   or

attempted     to    use”    includes     any    affirmative    act   “directing,

commanding,        encouraging,     intimidating,     counseling,      training,

procuring, recruiting, or soliciting” a minor to engage in the

charged offense. Id. n.1; see United States v. Taber, 497 F.3d

1177, 1181 (11th Cir. 2007). 7


     7
       We note the existence of a circuit split on the issue of
whether a defendant must take affirmative steps to involve the
minor in the offense or whether that defendant can be held
responsible for a co-conspirator's use of a minor when that use
is reasonably foreseeable. See United States v. Acosta, 474 F.3d
999, 1002 (7th Cir. 2007) (describing the circuit split).
Because we conclude that Juarez-Gomez took affirmative steps to
involve A.G. in the drug conspiracy at issue in this case, we
need not enter the debate as to whether the section 3B1.4
enhancement could also be applicable only upon evidence that the
use of the minor was reasonably foreseeable to the defendant. We
also take no position on whether the court's existing precedent
in United States v. Moore, applying Guidelines section 3B1.3,
also determines co-conspirator accountability under section
3B1.4. See 29 F.3d 175, 179 (4th Cir. 1994) (holding that co-
(Continued)
                                         19
       To apply the enhancement, courts generally require evidence

of    circumstances      “beyond       the    minor’s        mere   presence.”       United

States v. Molina, 469 F.3d 408, 414 (5th Cir. 2006). Still, an

“affirmative act” may include the defendant “driving himself and

the minor to [a] robbery location,” Taber, 497 F.3d at 1181; or

“asking the minor to accompany him or her to a crime,” United

States v. Voegtlin, 437 F.3d 741, 747 (8th Cir. 2006). In fact,

when     “a    defendant’s       crime       is    previously       planned—when,      for

example, she leaves the house knowing she is on her way to

smuggle drugs . . . the act of bringing the child along instead

of leaving the child behind is an affirmative act that involves

the    minor     in    the    offense”       and    constitutes       more    than     mere

presence. United States v. Mata, 624 F.3d 170, 176 (5th Cir.

2010).

       Juarez-Gomez          argues    that       the   district     court     erred     in

applying       the    section    3B1.4       enhancement       to    him     because    the

evidence showed only that A.G. made one rental payment. Juarez-

Gomez also posits that the government demonstrated only that

A.G.    accompanied      Pedro        and   Erasto      on   drug    transactions       and

provided no evidence that Juarez-Gomez directly involved A.G. in

his drug sales.



conspirators cannot be held responsible for another member of
the conspiracy's abuse of a position of trust under section
3B1.3 of the Guidelines).


                                              20
       This argument, however, ignores the evidence in the full

record. “[A] sentencing court may give weight to any relevant

information       before       it,     including         uncorroborated          hearsay,

provided       that    the     information         has    sufficient       indicia       of

reliability       to    support        its    accuracy.”         United        States    v.

Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010). Thus, the district

court could consider not only the rental receipt found among

A.G.’s belongings, but also the testimony that A.G. paid rent on

the trailer “from time to time,” the testimony that Juarez-Gomez

held   the     lease   on    the     trailer,     and    the    fact    that    A.G.    was

Juarez-Gomez’s son. (J.A. No. 13-4059 476.)

       Given    the    evidence      before       the    district      court    that    the

trailer was a drug stash house that formed the hub of a cocaine-

dealing conspiracy, that Juarez-Gomez leased the trailer, that

A.G. lived in the trailer, that A.G. attended drug deals with

Pedro and Erasto, that A.G. assisted Pedro in the extraction of

cocaine base from liquid cocaine, that A.G. was Juarez-Gomez’s

son, and that A.G. repeatedly paid rent on the trailer, the

district court had ample evidence to conclude that Juarez-Gomez

took the affirmative act of directing his minor son, A.G., to

pay rent on the trailer that he had leased for use as a drug

stash house. Further, given the evidence that the trailer was

filled   with     large      quantities      of    drugs,      money,    and    firearms,

Juarez-Gomez’s act of bringing A.G. into the trailer to live

                                             21
instead of leaving A.G. in another location “is an affirmative

act that involves the minor in the offense” and constitutes more

than the minor’s mere presence. Mata, 624 F.3d at 176.

     We therefore affirm the district court’s application of the

section 3B1.4 use of a minor enhancement as to Juarez-Gomez.



            C       Erasto: Possession of a Dangerous Weapon

     Again, “we review the district court’s sentencing procedure

for abuse of discretion, and must reverse if we find error,

unless we can conclude that the error was harmless.” Lynn, 592

F.3d at 581. We “review the district court’s legal conclusions

de novo and its factual findings for clear error.” Layton, 564

F.3d at 334.

     Erasto challenges the district court’s application of the

section      2D1.1(b)(1)         possession      of    a      dangerous          weapon

enhancement, arguing that there is no direct evidence that he

physically       possessed   a     firearm    during   any    drug    transaction.

Erasto further argues that the guns found in the trailer all

belonged    to    Juarez-Gomez      because    they    were   found       in    Juarez-

Gomez’s bedroom.

     At    Erasto’s     sentencing,     the    government     produced         evidence

that authorities found three firearms during their search of the

trailer. The district court attributed those firearms to Erasto,

concluding       that   it   was    reasonably    foreseeable        to    him     that

                                        22
firearms    would    be     used   in   the    conspiracy.       On    appeal,       Erasto

acknowledges that this court has held that weapons carried by a

member of a conspiracy are attributable to a co-conspirator when

“‘under the circumstances of the case, it was fair to say that

it was reasonably foreseeable to [the defendant] that his co-

participant was in possession of a firearm.’”                         United States v.

Kimberlin, 18 F.3d 1156, 1160 (4th Cir. 1994) (quoting United

States v. White, 875 F.2d 427, 433 (4th Cir. 1989)). Erasto

further     acknowledges       that     this    court       holds      that    “[a]bsent

evidence    of   exceptional       circumstances,       .    .   .     it    [is]    fairly

inferable that a codefendant’s possession of a dangerous weapon

is foreseeable to a defendant with reason to believe that their

collaborative        criminal       venture      includes         an        exchange     of

controlled substances for a large amount of cash.” Id. (quoting

United States v. Bianco, 922 F.2d 910, 912 (1st Cir. 1991)).

      The facts of this case afforded the district court, under

our precedents and the Guidelines, ample evidence on which to

find that the defendant’s conduct merited the enhancement. As

the   district      court    noted,     the    commentary        to    the    Guidelines

states that “[t]he enhancement [for possession of a dangerous

weapon] should be applied if the weapon was present, unless it

is clearly improbable that the weapon was connected with the

offense.”     U.S.    Sentencing        Guidelines      Manual         §     2D1.1     cmt.

n.11(A); (J.A. 159). Undisputed portions of the PSR give every

                                          23
reason to believe that the weapons in question were connected to

the    conspiracy       and      substantive        counts      on     which    Erasto       was

convicted. The PSR found that Erasto was responsible for more

than   8,000     grams      of    cocaine     and    700     grams      of     cocaine      base

recovered       in    the     form    of    narcotics      and       currency       from    the

residence.      (See    J.A.      212.)    Three     firearms—one         stolen       assault

rifle and two handguns—were discovered in the residence as well,

including one that was in plain view. (See J.A. 201, 203, 211.)

Various   tools       for     measuring,     storing,        and     dissolving        cocaine

were also present. (See J.A. 211.) The district court found that

Erasto was tied to the residence through both his presence there

when the police arrived as well as the existence of an energy

bill for the residence in his name. (See J.A. 158.)

       Erasto    also       appears    to    have     been      close        with     his   co-

conspirators: one was his brother, and Erasto brought the son of

the third co-conspirator along with him to several drug deals.

(See J.A. 211-12, 213.) The CW told the government that he had

engaged in an unspecified number of drug deals with Erasto and

his brother in the time leading up the arrest. (See J.A. 211-

12.)

       Together these facts, not objected to by Erasto, give no

reason to overturn the district court’s factual finding that the

weapons were connected to the drug trafficking conspiracy and

that   this     was    reasonably      foreseeable         on    the    part     of    Erasto.

                                             24
There is nothing in the record to suggest that the weapons were

unconnected to the offense, and the district judge did not err

when     he       found      that      the    defendant         was        connected            with      the

residence through his presence at the time of the search and the

energy bill in his name. Defense counsel had the opportunity at

sentencing          to      challenge        Erasto’s        connection            to    the     firearms

beyond his objections to the PSR but stated “I don’t need to be

heard    further            on   the     gun.”    (J.A.       154.)       We       thus       decline       to

disturb       the        court’s       finding        that     the        facts         of    this        case

supported          a       two-level       dangerous         weapons           enhancement             under

Guidelines section 2D1.1(b)(1).



                       D         Assumed Error Harmlessness Review

        Juarez-Gomez challenges the district court’s application of

the section 3B1.1(c) leadership enhancement, arguing on appeal

that    he    performed           only     the    functions        of     a    street-level               drug

dealer,       the      lowest       rung     on   a    drug-conspiracy              ladder.          Erasto

challenges the district court’s application of the section 3B1.4

use    of     a    minor         enhancement,         arguing      on      appeal            that    A.G.’s

presence      at       a    drug    deal      conducted       by     he       and       Pedro       was    not

legally sufficient to support that enhancement.

       Consistent            with    our     circuit     precedent            in    Savillon-Matute

and Hargrove, rather than review the merits of each of these

challenges,            we    may     proceed       directly          to       an    “assumed           error

                                                   25
harmlessness inquiry.” Hargrove, 701 F.3d at 162. In Savillon-

Matute, we held that harmless error review applies to a district

court’s procedural sentencing errors made during its Guidelines

calculation.     636   F.3d   at    123–24    (holding     that   “‘procedural

errors at sentencing . . . are routinely subject to harmlessness

review’” (quoting Puckett v. United States, 556 U.S. 129, 141

(2009))).    A   Guidelines     error    is   considered      harmless    if    we

determine that (1) “the district court would have reached the

same result even if it had decided the guidelines issue the

other way,” and (2) “the sentence would be reasonable even if

the guidelines issue had been decided in the defendant’s favor.”

Savillon-Matute, 636 F.3d at 123.

       In this case, the district court made it abundantly clear

that   it   would   have   imposed      the   same    sentence    against      both

Juarez-Gomez     and   Erasto      regardless    of     the   advice     of    the

Guidelines. For example, in pronouncing Juarez-Gomez’s sentence,

the district court stated,

            I have considered all the 3553(a) factors[,]
            and [in] imposing this sentence I do believe
            that I have properly calculated the advisory
            guideline range. If, however, for some
            reason someone were to determine that I did
            not, I announce an alternative variant
            sentence pursuant to [Keene, 470 F.3d 1347,
            Savillon-Matute, 636 F.3d 119, and Hargrove,
            701 F.3d 156].




                                        26
(J.A. No. 13-4059 519; see J.A. No. 12-5030 170 (making a nearly

identical statement in pronouncing Erasto’s sentence, quoted in

full supra).)

     Thus,     even    assuming,         arguendo,      that    the    district    court

erred   in     its      application            of   the      challenged      sentencing

enhancements,         the        first     element      of     the     assumed     error

harmlessness inquiry is met in each case because the district

court   has    expressly           stated      in   a   separate       and   particular

explanation     that        it     would     have    reached     the    same     result,

specifically citing to Savillon-Matute, Hargrove, and its review

of the § 3553(a) factors. We therefore proceed to the second

step of the inquiry, whether the district court’s sentences are

substantively reasonable.

     When     reviewing           the      substantive       reasonableness        of   a

sentence, 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).” United States v. Mendoza-Mendoza, 597 F.3d 212, 216

(4th Cir. 2010). And while we presume that sentences within the

advisory     Guidelines          range   are    substantively        reasonable,    even

sentences that vary outside the Guidelines range are entitled to

due deference. See United States v. Engle, 592 F.3d 495, 504

(4th Cir. 2010).



                                               27
       While     Juarez-Gomez             provides        no    argument           regarding     the

substantive reasonableness of his sentence, Erasto argues that

his    sentence       is     substantively               unreasonable         because      he     had

participated in the conspiracy for a short amount of time, the

length of his Guidelines range is based primarily upon the large

quantity    of    drugs       found       in     the      trailer,      he    had     no   serious

criminal       history,           and     he     faces         additional          sanctions      in

immigration proceedings following his incarceration.

       The record reflects that, in each case, the district court

provided a thorough and persuasive § 3553(a) analysis, carefully

considering each of the defendant’s arguments. With respect to

Erasto, the district court recognized its “obligation to impose

a sentence sufficient, but not greater than necessary, to comply

with the purposes set forth in the statute.” (J.A. No. 12-5030

165.) The      district           court    noted       that     Erasto       had    conspired      to

distribute       and        possess        with        intent      to     distribute            large

quantities       of        both     powder       cocaine         and     cocaine       base.      It

considered the short length of the conspiracy and concluded that

it was not particularly mitigating due to the large quantity of

cocaine found in the trailer. Despite the short duration of the

conspiracy, the district court concluded, “you knew who you were

in business with and you were in business to make money as a

drug   dealer.        So    you    then        pay   a    price    for       the    size   of    the



                                                 28
business you go into, and I do think you knew what you were

doing.” (J.A. No. 12-5030 167.)

     The   district     court    then     considered         Erasto’s     history        and

characteristics, including his family status and upbringing and

the fact that he entered the country illegally. The district

court    identified     the    need     for    both     individual       and       general

deterrence,   expressing        concern       over    “the    presence        of     such    a

large amount of drugs, the large amount of currency and the

firearms.”    (J.A.    No.    12-5030     168.)       Based     upon    all     of      these

considerations,       the    district     court       sentenced        Erasto      to    180

months’ imprisonment.

     Given    the     district     court’s           thorough    consideration              of

Erasto’s arguments and individual circumstances, we do not find

his sentence to be substantively unreasonable. 8


     8
       We conclude that the district court did not abuse its
discretion by declining to consider Erasto's status as a
deportable alien as a mitigating factor at sentencing. We also
note that Erasto's argument that his status as a deportable
alien is a mitigating factor requiring a lesser sentence has
been squarely rejected in other circuits. See United States v.
Thavaraja, 740 F.3d 253, 262–63 (2d Cir. 2014) (holding that in
determining an appropriate sentence under § 3553(a), "a district
court may[, but not must,] take into account the uncertainties
presented by the prospect of removal proceedings"); United
States v. Morales-Uribe, 470 F.3d 1282, 1287 (8th Cir. 2006)
(vacating   a  sentence  as   unreasonable  and   remanding  for
resentencing when a district court judge considered the
defendant's impending deportation as a mitigating factor and
that defendant had repeatedly entered the country illegally);
see also United States v. Flores-Olague, 717 F.3d 526, 535 (7th
Cir. 2013) (affirming the sentencing court's consideration of
(Continued)
                                          29
    With        respect    to   Juarez-Gomez,       the   district   court    again

considered all of the arguments made at sentencing and evaluated

his individual history and characteristics. Among other things,

the district court considered that Juarez-Gomez “gr[e]w up in

poverty    in    Mexico”    and   that   he   has    “repeatedly     come    to   the

United States illegally.” (J.A. No. 13-4059 514.) The district

court     then     recounted      a   “variety      of    crimes”    Juarez-Gomez

committed while in the United States, including illegal reentry

following deportation, which the district court concluded “shows

no respect for the law.” (J.A. No. 13-4059 514.) The district

court considered Juarez-Gomez’s involvement of his minor son,




defendant's status as a deportable alien as an aggravating
factor under § 3553(a)); United States v. Petrus, 588 F.3d 347,
356   (7th   Cir.  2009)  (holding   that,   dependent  upon the
circumstances of the case, a defendant's deportability could be
viewed as either a mitigating or an aggravating factor). And
several more circuits, including this one, have rejected such an
argument in unpublished decisions. See United States v.
Gutierrez, 506 F. App'x 714, 722 (10th Cir. 2012) (unpublished)
(holding that "deportable alien status is not a ground for
departing downward"); United States v. Salguero-Ortiz, 483 F.
App'x 858, 864 (4th Cir. 2012) (unpublished) (affirming a
defendant's sentence when the district court did not sua sponte
consider his status as a deportable alien at sentencing); United
States v. Kiss-Velasquez, 449 F. App'x 634, 637 (9th Cir. 2011)
(unpublished) (holding that a district court "did not err in
concluding that [the defendant] was not entitled to a downward
departure due to his status as an alien subject to removal");
United States v. Arroyo Mojica, 131 F. App'x 80, 82 (9th Cir.
2005)   (unpublished)  (vacating   a   defendant's  sentence and
remanding for resentencing when the district court considered
the defendant's status as a deportable alien as a mitigating
factor justifying a downward departure).


                                         30
A.G.,    in   the    drug   conspiracy     to   be     an    aggravating    factor

warranting a higher sentence and distinguished him from Pedro

and Erasto based upon his aggravated criminal history. Further

citing the need for both individual and general deterrence, the

district court sentenced Juarez-Gomez to concurrent sentences of

390 months’ imprisonment on Counts One and Six and 240 months’

imprisonment on Counts Two through Five.

     Again,         based   upon    the     district          court’s      thorough

consideration of the totality of Juarez-Gomez’s circumstances as

well as our deferential standard of review and Juarez-Gomez’s

failure to provide argument regarding substantive reasonableness

on appeal, we find no basis upon which to reverse his sentence.

     Erasto makes one additional argument that our precedent in

Savillon-Matute and Hargrove should apply only in cases where a

district court imposes a sentence above the Guidelines range

determined     at     sentencing.   While       both      Savillon-Matute 9     and

Hargrove 10   did     involve   consideration        of     sentences   above   the


     9
        In Savillon-Matute, the district court determined that the
defendant’s advisory Guidelines range was 12 to 18 months’
imprisonment. Due to the seriousness of the defendant’s criminal
history, however, the district court ultimately sentenced the
defendant to 36 months’ imprisonment, announcing a variant
sentence pursuant to § 3553(a).
     10
         In Hargrove, the district court determined that the
defendant’s    advisory   Guidelines  range   was  41-51   months’
imprisonment. Based upon its consideration of the factors in
§ 3553(a), the district court ultimately sentenced the defendant
to 60 months’ imprisonment.


                                      31
district    court’s          determined        Guidelines        range,       harmless     error

review     can    apply           to    all    claims       of        procedural      error     at

sentencing. As clearly stated by the Supreme Court in Puckett,

and quoted by this court in Savillon-Matute, “procedural errors

at   sentencing     .        .    .    are    routinely      subject         to    harmlessness

review.” Puckett, 556 U.S. at 141; Savillon-Matute, 636 F.3d at

123; see United States v. Zabielski, 711 F.3d 381, 387 (3d Cir.

2013)    (applying           harmlessness          review        to     a    below-Guidelines

sentence); Keene, 470 F.3d at 1350 (applying harmlessness review

to   a   within-Guidelines              sentence).         Here,       the    district     court

explicitly       made    a       separate      and    particular            statement    of    its

consideration       of       the       § 3553(a)         factors        in    “announcing      an

alternate variant sentence.”

      Moreover, in Keene, the Eleventh Circuit case establishing

the standards for “assumed error harmlessness review” that we

adopted in Savillon-Matute, the court reviewed and affirmed a

sentence that was within the Guidelines range determined by the

district    court       at       sentencing,       but     would      have    been    above    the

Guidelines       range       advocated        by     the    defendant         on     appeal.   At

sentencing, the district court concluded that the defendant’s

advisory Guidelines range was 100 to 125 months’ imprisonment,

based in part on its application of a sentencing enhancement for

making   death     threats            under   Guidelines         section      2B3.1(b)(2)(F).

The defendant argued that the district court had wrongly applied

                                                32
the death threat enhancement and asserted that his Guidelines

range     should    have   been    84    to     105   months’       imprisonment.       The

district court ultimately rejected the defendant’s arguments and

sentenced him to 120 months’ imprisonment. The district court

stated     for    the   record    that    it     would    have       imposed    the   same

sentence       pursuant    to    § 3553(a)       even    if    it    had    decided     the

Guidelines issue in favor of the defendant.

      On appeal, the Eleventh Circuit assumed that the district

court had incorrectly determined the advisory Guidelines range,

and reviewed that assumed error for harmlessness. The court thus

treated the sentence imposed as an above-Guidelines sentence and

considered whether that sentence was reasonable. The Eleventh

Circuit        concluded   that    the     sentence       was       supported    by     the

district court’s analysis of the § 3553(a) factors regardless of

the advice of the Guidelines. The court reasoned that “it would

make no sense to set aside [a] reasonable sentence and send the

case back to the district court since it has already told us

that it would impose exactly the same sentence, a sentence we

would be compelled to affirm.” 470 F.3d at 1350.

      Our decision in this case is in complete parity with Keene.

As   in   Keene,    the    district      court    sentenced         the    defendants    to

terms     of    imprisonment     that    were     within      the    Guidelines       range

established        at   sentencing.       And     also,       like     Keene,    if     the

Guidelines issues asserted by the defendants on appeal had been

                                           33
decided     in     their     favor,   their    sentences     would     be    above-

Guidelines sentences. Because the district court has explicitly

stated that it would have imposed the same sentences regardless

of the advice of the Guidelines, however, we can affirm as long

as those sentences are reasonable. See Hargrove, 701 F.3d at

164–65; Savillon-Matute, 636 F.3d at 124; Keene, 470 F.3d at

1348–50. As described above, the district court supported its

sentences        with    a   separate    and    particular     analysis        under

§ 3553(a), and we conclude that the district court’s ultimate

sentences    were       reasonable    under    that   analysis.   We    therefore

affirm the district court’s sentencing decisions and conclude

that any assumed errors in the district court’s application of

the section 3B1.1(c) leadership enhancement to Juarez-Gomez or

the section 3B1.4 use of a minor enhancement to Erasto were

harmless in this case.



                                        III

     For the foregoing reasons, we affirm the district court’s

judgments.

                                                                            AFFIRMED




                                        34
GREGORY, Circuit Judge, concurring in part and dissenting in
part:

     I concur in the majority opinion as to the sufficiency of

evidence for Juarez-Gomez’s conviction and the enhancement for

firearm   possession. 1       I   dissent   from     the   disposition         of   the

remaining    sentencing      enhancement    challenges:       use   of     a   minor,

U.S.S.G. § 3B1.4, and the majority’s harmless error analysis.



                                     I.

     I would reverse the district court’s enhancement of Juarez-

Gomez’s   sentence     for    the   use    of    a   minor.     The       Sentencing

Guidelines    impose   a     two-level    enhancement      where      a   defendant

“used or attempted to use” a minor in committing the offense of

conviction or in avoiding detection thereof.                  U.S.S.G. § 3B1.4.

Congress defined “use” in a manner that encompasses a host of

actions   ranging    from     direction     to   training     to    solicitation.

U.S.S.G. § 3B1.4 cmt. n. 1.         Based on this broad definition, the


     1
       I also concur in the conclusion that the district court
did not abuse its discretion in refusing to depart downward on
the basis of Erasto’s status as a deportable alien. This Court
has long recognized that we lack jurisdiction to review a
refusal to depart downward so long as the district court
recognized its ability to do so.     See, e.g., United States v.
Brewer, 520 F.3d 367, 371 (4th Cir. 2008).     The district court
recognized this discretion and declined to exercise it.       For
this reason alone, I find no abuse of discretion, see United
States v. Olivares, 473 F.3d 1224, 1231 (D.C. Cir. 2006),
although I agree that a defendant’s status as a deportable alien
does not mandate downward departure.
majority concludes that the enhancement is appropriate based on

the affirmative acts of (1) directing A.G. to pay rent and (2)

“bringing A.G. into the trailer to live instead of leaving A.G.

in another location.”          Maj. Op. at 21-22.         Whether a defendant

“uses”    a   minor    under   the    Guidelines    is    a   legal    conclusion

reviewed de novo.         United States v. Feaster, 43 F. App’x 628,

632 (4th Cir. 2002) (citing United States v. McClain, 252 F.3d

1279, 1284 (11th Cir. 2001)); United States v. Powell, 732 F.3d

361, 380 (5th Cir. 2013).

      As elastic as the Guidelines definition may be, I find that

the   majority’s      conclusion     stretches    “use”   beyond      its   limits.

Absent other evidence, a minor’s mere presence does not warrant

enhancement under § 3B1.4.           See, e.g., United States v. Molina,

469 F.3d 408, 414 (5th Cir. 2006).               The majority concludes that

there was more than mere presence, such that the use of a minor

enhancement is appropriate as to Juarez-Gomez.                 Maj. Op. at 20.

I find that to the extent that there is something more than

presence,     those     acts   do     not    fall   within     the     Guidelines

definition.     United States v. Mata, which the majority opinion

cites, provides a clear line of demarcation between that case

and the facts now before us. 2          In Mata, the court explained that


      2
       Two other cases referenced in the majority opinion are
also distinguishable. In United States v. Taber, the fact that
the defendant drove the minor to the robbery location was viewed
(Continued)
                                        36
presence could sufficiently constitute an affirmative act where

the    minor’s    presence     served       as   a   decoy    or     was    otherwise

instrumental in evading detection of criminal activity.                           624

F.3d    170,   176    (5th   Cir.   2010).       Discovering        such   connection

“requires a purpose driven inquiry.”                 United States v. Powell,

732 F.3d 361, 380 (5th Cir. 2013).               Juarez-Gomez’s actions cited

by the majority fall short of being acts intended to “commit the

offense or assist in avoiding detection of, or apprehension for,

the offense.”        U.S.S.G. § 3B1.4.

                                       A.

       On this record, paying rent for the trailer was neither

criminal activity nor a means of avoiding detection.                          Without

any    evidence   that    submitting    the      monthly     rent    for   the   place

where he and his father lived is a criminal act, I do not see




in connection with the fact that the minor broke into a building
and stole firearms, a patently affirmative criminal act, and
that the defendant acted as a lookout while the minor stole
weapons. 497 F.3d 1177, 1181 (11th Cir. 2007). The record does
not demonstrate the same confluence of criminal activity
involving Juarez-Gomez and A.G.
     United States v. Voegtlin noted that enhancement may be
proper where a minor is asked to accompany a defendant who
commits a crime.   437 F.3d 741, 747 (8th Cir. 2006).   However,
the case upon which Voegtlin relied for this rule involved a
minor asked to accompany the defendant to a crime because the
defendant would not have had the courage to commit the crime
without the minor present. See United States v. Paine, 407 F.3d
958, 965 (8th Cir. 2005). Again, nothing in this record crafts
an analogous situation whereby Juarez-Gomez needed A.G. in order
to sell drugs.


                                        37
how A.G.’s act of paying the rent amounts to committing the

offense of conspiracy to distribute.              Were that the case, then

all parents who ask their children to drop off a rent payment

for a residence that is used to engage in criminal activity

would    be   subject   to   a   two-level   enhancement.          Furthermore,

nothing in the record so much as hints at how A.G. paying the

rent, rather than Juarez-Gomez, somehow kept the landlord or

anyone else from discovering criminal activity in the trailer. 3

Without   a   showing   that     paying   rent    for   A.G.’s   residence   was

criminal or linked to evasion from authorities, merely paying

rent cannot amount to an affirmative act involving the minor in

the offense of conviction.

     In much the same way, I also disagree that the enhancement

applies on the ground that Juarez-Gomez brought A.G. to live in

the trailer rather than leave A.G. elsewhere.                    The majority’s

reliance on Mata for this conclusion is misplaced.                 In Mata, the

court explicitly found a connection between the minors’ presence

and a plan for evading detection.                See Mata, 624 F.3d at 177

(the presence of the minors in the car was intended to “give the

appearance that the group was traveling as a family unit and to


     3
       The landlord stated that he collected rent from A.G. from
time to time.   This does not suggest that A.G. exclusively, as
opposed to intermittently, paid the rent.      Thus, there is no
inference that A.G. paying rent was a method for Juarez-Gomez to
avoid being known by the landlord or anyone else.


                                      38
reduce      the   likelihood         of    coming        under       suspicion         for    being

engaged      in   criminal        conduct”).             The        court    cited      evidence

demonstrating          that    the    defendant,             who     planned      to    use    her

children to avoid detection from law enforcement, “could have

avoided bringing her children with her by leaving them under the

care of her friend who, like Mata, lived in San Antonio.”                                     Mata,

624 F.3d at 177.              Here, there is no proof that A.G.’s presence

at the trailer served as an explanation or cover for criminal

activity.             See   Molina,        469        F.3d    at      413-14      (enhancement

inappropriate where no evidence in drug conspiracy conviction

could show that the defendant “believed that his seventeen-year-

old girlfriend’s presence in the vehicle during the drug run

would assist in avoiding detection”).                             Furthermore, no evidence

demonstrates that Juarez-Gomez could have left his son to live

with someone, whether in the same city or elsewhere.

      The    Fifth      Circuit      was    careful          to    limit    its   decision       in

order to ensure that § 3B1.4 was not applied to “every defendant

who   brings      a    minor    child      along       while       [engaging      in     criminal

conduct] is subject to” the § 3B1.4 enhancement. Mata, 624 F.3d

at 176.       By contrast, the majority opinion lays the very trap

that the Fifth Circuit refused to set.                             The facts in this case

do not show that A.G. paying rent or living with Juarez-Gomez

was criminal or calculated to elude authorities.                                  By applying



                                                 39
§ 3B1.4 regardless, the majority expands the enhancement beyond

its language.

                                           B.

       A.G.’s presence at drug deals with Pedro and Erasto involve

some additional facts, yet not enough for me to agree that the

use of a minor enhancement was appropriate for Juarez-Gomez.

The    confidential       witness    explained     that    A.G.     was    present   at

multiple drug deals with both Pedro and Erasto, and that another

deal       where   only   Pedro     and    A.G.   were    present    involved      A.G.

assisting Pedro in cooking cocaine base.                    No facts demonstrate

that Juarez-Gomez instructed A.G. to join Pedro and Erasto, or

that he instructed A.G. to engage in criminal activity, e.g.

cooking cocaine. 4

       To    the   extent   that     the    majority     implicitly       relies   upon

A.G.’s acts in connection with Pedro and Erasto’s activities,

see Maj. Op. at 21, enhancement could only be proper if it was

reasonably foreseeable that Pedro and Erasto would involve A.G.

in criminal activity.             The majority declined to take a position

on this issue, having otherwise found sufficient proof of an

affirmative act within the definition of § 3B1.4.                         See Maj. Op.

       4
       At oral argument, the government averred that having A.G.
in the trailer where individuals were storing and cooking drugs
equates to training and encouragement.     Taken to its logical
conclusion, presence at any criminal activity would be construed
as encouraging a minor to engage in the same activity, rendering
“mere presence” a mere theory.


                                            40
at 19 n. 8.         I address this issue only to make two brief points.

First, with respect to those deals involving both Erasto and

Pedro,      no    evidence      shows      that      A.G.’s       presence      in    any    way

assisted      the    commission       of   the      drug     deals      or    diminished     the

likelihood of detecting criminal activity. 5                            Cf. Mata, 624 F.3d

at    176-77.        Second,      the    deal       where    A.G.       assisted     Pedro     in

cooking cocaine base undoubtedly presents a use of minor within

the    Guidelines        definition.           However,       I       would   conclude      that

Pedro’s conduct, even if reasonably foreseeable, cannot trigger

the use of a minor enhancement as to Juarez-Gomez.                                 See United

States      v.    Pojilenko,       416      F.3d       243       (3d     Cir.    2005)      (co-

conspirator’s reasonably foreseeable use of a minor cannot apply

to    other      conspiracy       members        for    the       purpose       of    applying

§ 3B1.4).         I believe the principles recognized in our United

States v. Moore decision apply equally to § 3B1.4.                               See 29 F.3d

175    (4th      Cir.    1994).         Moore       looked       to    the    structure      and

defendant-specific language of role in the offense enhancements

under      chapter      three   and     held     that      the    Guidelines         require   a

finding that the defendant, not any co-conspirators, engage in

the proscribed behavior.                Id.; see also Pojilenko, 416 F.3d at

248-249 (applying Moore’s reasoning to § 3B1.4).



       5
       Although the majority does not reach the issue, I would
find § 3B1.4 inapplicable to Erasto for this same reason.


                                               41
       For these reasons, I would find that neither the conduct of

Juarez-Gomez nor that of his co-conspirators supports a § 3B1.4

enhancement for Juarez-Gomez.



                                           II.

       I further disagree that, even assuming the district court

committed        error    in    applying       the   leadership      enhancement       to

Juarez-Gomez and the use of a minor enhancement to Erasto, the

errors were harmless.

      In   order     to    avoid      remanding      a   sentence    that     we    would

otherwise    affirm       despite      a     procedural    error,    we     conduct    an

“assumed error harmlessness inquiry” consisting of two steps.

United States v. Hargrove, 701 F.3d 156, 162-63 (4th Cir. 2012);

see also United States v. Savillon-Matute, 636 F.3d 119, 123-24

(4th Cir. 2011).            First, this Court must have the “knowledge

that the district court would have reached the same result even

if    it   had    decided       the    [G]uidelines       issue    the     other    way.”

Savillon-Matute,          636   F.3d    at    123.       Second,    this    Court    must

determine that the imposed sentence would be reasonable even

after resolving the procedural error in the defendant’s favor.

Id.    Only where the Court is “certain” of these two factors will

an error be deemed harmless.                  United States v. Gomez, 690 F.3d

194, 203 (4th Cir. 2012).



                                              42
     I am not certain that we have the requisite knowledge that

the district court would have reached the same result absent any

error in calculating the Guidelines range.                           To be sure, the

district    court       stated     that   it      would     have    imposed     the    same

sentence    even     if    the     Guidelines      calculations       were    erroneous.

This explicit statement presents a different circumstance from

Savillon-Matute,          Hargrove,    and     our    recent       decision    in    United

States v. Montes-Flores, 736 F.3d 357 (4th Cir. 2013), where the

district courts made no such statement.                            Even so, I do not

believe    that     a     simple    statement        that    the    court     would    have

imposed    the     same    sentence    is    sufficient,       at     least    where   the

imposed sentence exceeds what would have been the Guidelines

range     absent    the     procedural       error. 6        The     district       court’s

explanation      fails      to   distinguish         its    reasons    for     a    within-

Guidelines sentence from those for an above-Guidelines sentence,

and thus fails to provide the necessary certainty to know it

would have imposed the same sentence.                        See United States v.


     6
       If we assume the court erred in applying the use of a
minor enhancement to Erasto, then his 180-month sentence exceeds
what would be a Guidelines range of 135-168 months.
     If we likewise assume the court erred in applying both the
use of a minor and the leadership enhancements to Juarez-Gomez,
his 390-month sentence also exceeds what would be a Guidelines
range of 262-327 months.    This would result from a four-level
reduction--two levels for each enhancement.    If we only assume
error as to the leadership enhancement, since the majority
affirmed the use of a minor enhancement, then the two-level
reduction would result in a range of 320-405 months.


                                             43
Zabielski, 711 F.3d 381, 389 (3d Cir. 2013) (“Though probative

of   harmless          error,    [a     statement            that   the     court          would       have

imposed the same sentence] will not always suffice to show that

an   error       in     calculating          the    Guidelines         range          is    harmless;

indeed,     a     district      court     still         must    explain         its    reasons         for

imposing the sentence under either Guidelines range.”).

      In        reviewing        above-Guidelines               sentences,            without          the

harmless error analysis, we would require the district court to

“explain         his     conclusion       that          an    unusually         lenient           or    an

unusually        harsh     sentence      is        appropriate.”            United          States      v.

Gall, 552 U.S. 38, 46 (2007).                            The majority is content with

considering harmless what would otherwise require a separate and

particular explanation for a variance.                              To allow what is, as a

matter      of     analytical          fiction,         an     above-Guidelines              sentence

without     the        explanation      normally          required        for    such       sentences

fails      to    comport        with    the        need       “to    allow       for       meaningful

appellate review and to promote the perception of fair justice.”

Id. at 50.             Nothing could be less meaningful than labeling an

error    harmless        so     long    as    a     district        court       states       it    would

impose the same sentence in the event it erred, without also

“thorough[ly] expla[ining]” why it would do so.                                   Zabielski, 711

F.3d at 389.           The exception has now swallowed the rule.

      Our       good     colleague,          who        previously        authored          Savillon-

Matute, recognized that harmlessness is difficult to prove where

                                                   44
a district court calculates a guidelines range and sentences a

defendant within that range, for “it is logical to assume that

if a district court is content to sentence within whatever the

guidelines range happens to be, then a lower range would lead to

a sentence within that lower range.”                 Montes-Flores, 736 F.3d at

372 (Shedd, J., dissenting).            It would seem equally logical that

if   the    ranges   for    Erasto     and      Juarez-Gomez          were       erroneously

calculated, the district court would have imposed a sentence

within the new ranges just as it imposed sentences within the

erroneous    ranges.        We    cannot     be   certain          that    it    would     have

varied upward without some appropriate and stated justification

for doing so.

       Within-Guidelines         sentences,        the        scenario          Judge    Shedd

referenced     in     Montes-Flores,            appear        in    the         majority    of

convictions.          Undoubtedly,         some     cases          will     also        involve

reprehensible       behavior     and   criminal      history         that       may     warrant

punishment beyond what the Guidelines recommend.                           I do not doubt

a district court’s power to impose such sentences.                               I only call

for what would be required if we were to apply Gall and consider

procedural     reasonableness:         a     “justification               for     an     above-

Guidelines sentence.”            Montes-Flores, 736 F.3d at 371 (emphasis

added).     If the standard for harmlessness truly is “a high bar,”

id.,   we   should    not   be    so   forgiving         as    to    find       harmlessness

without the explanation that would be otherwise required, see,

                                           45
e.g., United States v. King, 673 F.3d 274, 283 (4th Cir. 2012)

(appellate review must ensure that district courts “adequately

explain . . . any deviation from the Guidelines range”).                                  Only

with the assistance of such an explanation or justification may

we then conduct a meaningful review.

      The    absence       of    such     justification           for    the     alternative

sentence cannot be more at odds with the perception of fair

justice.          The     majority        perceives       the      district       court    as

specifically citing, in a “separate and particular explanation”

for its alternative sentence, Maj. Op. at 26, the § 3553(a)

factors.     In reality, that “separate and particular explanation”

was   a   single        sentence,    in    which      the    district          court    simply

referenced        our    harmless    error        precedent        and    its    §     3553(a)

analysis,     which      was    devoid     of   any   indication          that    an    upward

variance was necessary to impose an appropriate sentence.                                   A

court must provide more than just the § 3553(a) factors as a

reason    for     varying       upward,    as     those     are    required       for   every

sentencing.        Montes-Flores, 736 F.3d at 371.                      Absent any stated

reason      for    varying       upward     where     the        court     was       otherwise

satisfied to impose a sentence in the middle of the Guidelines

range, I do not find that the district court’s § 3553(a) review

would justify an upward variance.                     While district courts need

not   employ       any     particular       verbiage        to     justify       an     above-

Guidelines sentence, the imposition of an alternative sentence

                                             46
demands “a thorough explanation” that “can help us identify when

an erroneous Guidelines calculation had no effect on the final

sentencing    determination.”             Zabielski,     711    F.3d   at    389.       To

accept     the     perfunctory          reasoning       offered    here          for    an

alternative, variant sentence would be to value form over the

substance Gall requires.

     The    evolution      of    our      harmless      error   jurisprudence          has

reached    the    point    where    any    procedural      error   may      be   ignored

simply because the district court has asked us to ignore it.                            In

other    words,    so     long     as   the     court    announces,      without       any

explanation as to why, that it would impose the same sentence,

the court may err with respect to any number of enhancements or

calculations.       More to the point, a defendant may be forced to

suffer the court’s errors without a chance at meaningful review.

Gall is essentially an academic exercise in this circuit now,

never to be put to practical use if district courts follow our

encouragement to announce alternative, variant sentences. 7                             If


     7
       While this Court has reviewed alternative sentences for
more than twenty years, we recently began encouraging the
imposition of alternative sentences in light of uncertainties
eventually resolved by United States v. Booker.       See United
States v. Hammoud, 378 F.3d 426 (4th Cir. 2004), vacated 543
U.S. 1097 (2005); see also Montes-Flores, 736 F.3d at 374 & n. 4
(Shedd, J., dissenting).    Perhaps this concept of alternative
sentences serves a purpose in extraordinary circumstances of
constitutional importance, such as that time period where we
questioned whether the Guidelines were mandatory or advisory.
See id. at 426; see also United States v. Alvarado Perez, 609
(Continued)
                                           47
the     majority       wishes       to     abdicate       its       responsibility        to

meaningfully review sentences for procedural error, the least it

can do is acknowledge that it has placed Gall in mothballs,

available only to review those sentences where a district court

fails to cover its mistakes with a few magic words.

      The majority upholds the challenged sentences because they

are accompanied by a cursory statement that essentially renders

procedural      mistakes       irrelevant.             This    is   perhaps      the   most

troubling aspect of the majority’s conclusion:                            the combination

of the district court’s statement and a one-sentence argument at

the end of the government’s brief is a sufficient basis for this

Court’s     refusal      to       review    the       propriety      of    a     sentencing

enhancement.         As an initial matter, this approach deprives us of

the   opportunity       to     address      the       applicability        of    sentencing

enhancements.         More importantly, the practical effect of this

conclusion      is    the     creation     of     a    mechanism     whereby       district

courts    may   impose       one-size-fits-all           sentences        that   appellate

courts would refrain from meaningfully reviewing.                           Courts could

apply     any   number       of    enhancements         to     justify      reaching    the

sentence    they      desire,      then    use     this       Court’s     harmless     error



F.3d 609, 619 (4th Cir. 2010) (noting the “limited context” in
which this Court encouraged alternate sentences).      However,
absent legal uncertainties of the magnitude present in the time
between Blakely v. Washington and Booker, I would not encourage
alternative sentences.


                                            48
jurisprudence to prompt us to uphold a sentence that otherwise

lacks      a    sufficient   justification.           The   notion   of    consistent

sentences        for    similarly    situated    defendants     disappears         where

errors      regarding     conduct    and    enhancements--errors          which    would

make       defendants      dissimilar--are          swept   under    the      rug    of

harmlessness.

       For      these    reasons,     I    remain     unconvinced    we     have    the

requisite        knowledge    for    harmless       error   where,   as    here,    the

district court merely announces an alternative variant sentence,

equal      to    the    initial     within-Guidelines       sentence,      without    a

thorough explanation demonstrating that an error in calculating

the sentencing range had no bearing on the imposed sentence.

This would justify what would be an upward deviation from a

properly calculated Guidelines range.                  Therefore, I respectfully

dissent from the majority’s harmless error analysis. 8




       8
       I would further find that the application of the remaining
enhancements were erroneous and remand for resentencing.        I
would find that the use of a minor enhancement does not apply to
Erasto because the evidence does not show anything more than
A.G.’s mere presence at drug deals involving Erasto.     See ante
at 41 & n. 4. I would also find that the leadership enhancement
inapplicable to Juarez-Gomez because A.G. paying rent for the
place A.G. lives is not a criminal activity which could show
that Juarez-Gomez directed or supervised an act by A.G. that was
part of the conspiracy to distribute.


                                            49
