                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 16-4276


UNITED STATES OF AMERICA

                       Plaintiff – Appellee,

          v.

GARY WAYNE LYLES,

                       Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   N. Carlton Tilley,
Jr., Senior District Judge. (1:14-cr-00377-NCT-24)


Submitted:   December 21, 2016             Decided:   January 18, 2017


Before WILKINSON, SHEDD, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Elisa C. Salmon, SALMON LAW FIRM, LLP, Lillington, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Terry   M.   Meinecke,    Assistant   United States Attorney,
Winston-Salem, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Gary     Wayne      Lyles        pleaded      guilty     pursuant            to     a     plea

agreement to conspiracy to possess pseudoephedrine with intent

to   manufacture         methamphetamine.              He    received         an        82-month

sentence.          On    appeal,        he     argues       that    his       sentence          is

procedurally and substantively unreasonable.                       We affirm.

     We     review       a     defendant’s         sentence        for     an          abuse     of

discretion.      Gall v. United States, 552 U.S. 38, 51 (2007).                                  In

reviewing    a   district        court’s       decision      to    apply      a    sentencing

enhancement, “[w]e accord due deference to a district court’s

application of the sentencing guidelines.”                           United States v.

Steffen, 741 F.3d 411, 414 (4th Cir. 2013).                                We review the

district court’s factual determinations for clear error.                                        Id.

However,     “if        the     issue        turns    primarily          on       the         legal

interpretation of a guideline term, the standard moves closer to

de novo review.”          Id. (alterations and internal quotation marks

omitted).

     The district court imposed a two-level enhancement for the

unlawful transportation, treatment, storage, or disposal of a

hazardous     waste,          under     U.S.       Sentencing       Guidelines               Manual

§ 2D1.11(b)(3)(B) (2014).                For the enhancement to apply, the

defendant’s conduct must violate one of several environmental

statutes, including the Resource Conservation and Recovery Act,

42 U.S.C. § 6928(d) (2012).                    USSG § 2D1.11 cmt. n.4.                        Lyles

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asserts    that    the     district         court     erred        in     applying         this

enhancement.

       We assume, without deciding, that the court erred in its

determination.          Even    if    the    court     erred        in     assessing         the

enhancement,      “harmless         error    review     applies          to     a    district

court’s procedural sentencing errors made during its Guidelines

calculation.”      United States v. Gomez-Jimenez, 750 F.3d 370, 382

(4th Cir. 2014).         Thus, “we commonly assume, without deciding,

an error in performing harmless error inquiry.”                            United States

v.   Savillon-Matute,      636       F.3d    119,    123     (4th       Cir.    2011).         A

“Guidelines error is harmless if we believe (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 [substantively] reasonable even if the guidelines issue had

been   decided    in    the    defendant’s          favor.”         United          States    v.

Parral-Dominguez, 794 F.3d 440, 447 (4th Cir. 2015) (alteration

in original) (internal quotation marks omitted).                              Even assuming

that the application of the USSG § 2D1.11(b)(3)(B) enhancement

was in error, that error was harmless.

       Although   the    district      court       applied     the       enhancement,         it

“backed   out”    the    increased      two       offense     levels       because      other

defendants involved in the same conspiracy did not receive the

same   enhancement.           The    court       sentenced    Lyles        based      on     the

Guidelines     range     without       consideration          of     the       enhancement.

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Thus, any potential error from applying the enhancement is moot

and harmless.      See Parral-Dominguez, 794 F.3d at 447.

       Lyles     also     argues      that        his     82-month      sentence    is

substantively reasonable because it is higher than necessary to

meet   the     considerations       of    the     18    U.S.C.   §    3553(a)   (2012)

factors under the totality of the circumstances.                        Lyles argues

that he had a limited criminal history consisting of relatively

minor offenses, that prior to his methamphetamine addiction he

had a solid and stable lifestyle, and that after receiving drug

rehabilitation, he would be an unlikely recidivist.

       If a sentence is free of “significant procedural error,” as

is the case here, we review it for substantive reasonableness,

“tak[ing]      into     account    the     totality       of   the    circumstances.”

Gall, 552 U.S. at 51.             “Any sentence that is within or below a

properly       calculated         Guidelines           range     is     presumptively

reasonable.”      United States v. Louthian, 756 F.3d 295, 306 (4th

Cir. 2014).      “Such a presumption can only be rebutted by showing

that the sentence is unreasonable when measured against the 18

U.S.C. § 3553(a) factors.”           Id.

       Lyles     has     not      rebutted        the     presumption      that    his

below-Guidelines        sentence     is     substantively        reasonable.       The

district court considered that Lyles did not “offend[] greatly,”

and that Lyles sincerely took responsibility for his offense.

The    court    stated     that     it     felt        “optimistic”    about    Lyles’

                                            4
potential when listening to him allocute.                  The court also noted

Lyles’   employment       history   and       limited    criminal       history     and

considered the need for correctional drug treatment.                      The court

also stated that the methamphetamine offense involved a serious

drug   and   a   serious      problem.        Viewing     the   totality       of   the

circumstances, we conclude that Lyles has failed to overcome the

presumption      of    reasonableness         accorded    his    below-Guidelines

sentence.

       Accordingly, we affirm the district court’s judgment.                        We

dispense     with      oral   argument    because        the    facts    and      legal

contentions      are   adequately   presented       in    the   materials      before

this court and argument would not aid the decisional process.



                                                                            AFFIRMED




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