                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 13-4296


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

DENNIS RAY HOWARD,

                Defendant - Appellant.



                               No. 13-4299


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

DENNIS RAY HOWARD, a/k/a D,

                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. (5:97-cr-00098-D-1; 5:12-cr-00009-D-1)


Argued:   September 17, 2014                Decided:   December 4, 2014


Before MOTZ and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Judgment in No. 13-4296 affirmed in part, and vacated and
remanded in part; appeal in No. 13-4299 dismissed by published
opinion.   Senior Judge Davis wrote the opinion, in which Judge
Motz and Judge Diaz joined.


ARGUED:   Robert  Lonnie   Cooper,   COOPER,  DAVIS   &  COOPER,
Fayetteville, North Carolina, for Appellant.     Yvonne Victoria
Watford-McKinney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.      ON BRIEF: Thomas G. Walker,
United States Attorney, Jennifer P. May-Parker, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.




                               2
DAVIS, Senior Circuit Judge:

        In appeal No. 13-4296, a jury convicted Dennis Ray Howard

on one count of conspiracy to distribute and possess with intent

to    distribute         a    controlled        substance,       phencyclidine        (“PCP”),

nine counts of distribution of PCP, and one count of possession

of a firearm in furtherance of a drug trafficking offense. The

district court sentenced Howard to a term of life imprisonment

plus    60        months.    In    appeal       No.    13-4299,    the     court    imposed    a

consecutive sentence of 60 months for violation of supervised

release arising from the convictions in appeal No. 13-4296.

        Howard noted timely appeals from both judgments, but he has

abandoned his appeal of the revocation sentence in No. 13-4299,

which        we    dismiss.        As     to    the    drug    trafficking         appeal,    he

challenges the sufficiency of the evidence supporting each of

his     convictions          and        the    substantive       reasonableness       of     his

sentence.          For   the      reasons       set    forth     within,    we     affirm    the

convictions, vacate the sentence as substantively unreasonable,

and remand for resentencing.

                                                  I.

                                                  A.

        In        September       2010,        Wilson,    North      Carolina        narcotics

investigator Jason Corprew was investigating drug activity at a

residence           on   Black      Creek        Road     when     he    learned      from    a



                                                  3
confidential informant, C.B. 1, that Howard, or “D” as he was

commonly known, sold C.B. a “dipper” from the residence. Dippers

are cigarettes that are saturated in PCP. Over the course of the

next month, C.B., along with another informant, A.B., returned

to the Black Creek Road residence at the direction of Corprew to

make several controlled purchases of PCP from Howard. All told,

the informants purchased PCP from Howard, either together or

individually, six times between September 20 and October 13,

2010. A third confidential informant, A.I., participated in two

controlled purchases of PCP from Howard in 2011. At the first

transaction, a middle man for Howard, Desmond Farmer, delivered

a one-ounce vial of PCP to A.I. on Howard’s behalf. At the

second     transaction,    however,     Howard   personally    delivered     two

vials of PCP to A.I.

       The controlled purchases continued with the assistance of

T.W. In May 2011, Wilson Police arrested T.W. on drug charges.

T.W. agreed to assist Corprew in the investigation of Howard,

and   arranged   to   purchase    one    ounce   of   PCP   from   him.   Howard

agreed to bring the PCP to T.W.’s house. Surveillance officers

at    Howard’s   house    on   Vick   Street     observed   him    leaving   the


       1
       We have withheld the full names of the confidential
informants and government cooperators in this case in accordance
with recent guidance issued by the Judicial Conference Committee
on Court Administration and Case Management.



                                        4
residence and driving to T.W.’s house, talking to a woman who

answered        the        door,      and      returning        to     his    vehicle.         Shortly

thereafter, a Wilson police officer conducted a traffic stop of

Howard’s        car    and       he    detected        the     odor    of    PCP.    A       search    of

Howard’s car revealed a glass vial containing one ounce of PCP.

Officers placed Howard under arrest and then obtained a search

warrant for Howard’s home, where he lived with his girlfriend.

Officers found a loaded pistol with one round in the chamber and

a box of ammunition in the living room. In an adjoining den,

officers        found        an       operational        police        scanner,      an        envelope

bearing Howard’s name and address that contained black plastic

caps   of       the   type        used      in   the     sale    of    PCP,    and       a    piece    of

cardboard         with       a        description         of     vial        containers         and    a

“discountvial.com” web address. Officers did not find any PCP

during their search of Howard’s home.

                                                    B.

       On January 17, 2012, a federal grand jury in the Eastern

District        of    North        Carolina        returned      a     nine-count            indictment

against     Howard.          Count       One     charged       Howard       with    conspiracy        to

distribute           and     possess        with       intent     to     distribute           PCP,    in

violation of 21 U.S.C. § 846. Counts Two through Seven and Count

Nine charged Howard with distribution of PCP, in violation of 21

U.S.C.      §    841(a).          Count     Eight       similarly       charged      Howard          with

distribution of PCP, and aiding and abetting another to do the

                                                    5
same.      On   September       25,    2012,     the   grand     jury    returned      a

superseding indictment, which retained the original charges and

added two new charges: an additional count of distribution of

PCP   in    violation     of    21     U.S.C.    §   841(a),    and    one    count   of

possession of a firearm in furtherance of a drug trafficking

offense, in violation of 18 U.S.C. § 924(c). Prior to trial, the

Government filed a notice of intent to seek an enhanced penalty

based on Howard’s previous convictions in state court in North

Carolina of felony drug offenses.

      Trial began on October 15, 2012. Investigator Corprew, two

confidential informants, and T.W. testified to the controlled

purchases,      some    of     which    were    recorded   by    audio       and   video

surveillance.      Four      cooperating        individuals     also    testified     to

their previous PCP drug dealing with Howard. 2 At the close of the


      2
       One individual, Q.S. testified that, beginning in January
2010, he visited Howard’s home at least once a week over the
course of five months to purchase vials of PCP.

     D.W. and R.W. were coconspirators of Howard but were
indicted together in a separate case, entered into plea
agreements, and testified against Howard. They explained how the
PCP drug trade in Wilson operated. D.W. testified that he, R.W.,
and Howard shared the same PCP supplier in Washington, D.C. D.W.
also testified that, given the relatively few PCP dealers in
Wilson, when his supply of PCP was depleted, he would refer
customers to Howard. On several occasions, D.W. and Howard
purchased PCP directly from one another, rather than from their
shared Washington, D.C. supplier. D.W. also admitted to
participating in PCP deals with Howard at Howard’s home. R.W.
testified to his practice of “cutting” or diluting his PCP
supply with olive oil. Customers in search of a more potent
(Continued)
                                           6
evidence, the jury returned a verdict of guilty on all counts in

the superseding indictment. On October 22, 2012, Howard timely

renewed his motion for judgment of acquittal pursuant to Rule 29

of the Federal Rules of Criminal Procedure.             The district court

denied the motion.

                                         C.

       During the above events, Howard was on supervised release

based      on   a   1997    federal   narcotics   trafficking    conviction.

Accordingly, in January 2013, Howard’s probation officer filed

an amended petition for revocation of supervised release based

on   the     instant     convictions.    Thereafter,   the   district    judge

conducted Howard’s sentencing and revocation hearings.

       The Presentence Investigation Report (“PSR”) for the new

drug       trafficking     convictions   originally    recommended   a   base

offense level of 26 and a criminal history category of III,

which equated to a Guidelines range of 78 to 97 months. 3 As the

Government had filed a notice of enhanced sentence pursuant to

21 U.S.C. § 851, however, the enhanced Guidelines range was 120



product would purchase PCP from Howard. In an effort to redirect
business back to himself, R.W. would purchase unadulterated PCP
from Howard for resale.
       3
       There is no dispute that on Count Eleven, the gun count, a
mandatory sentence of 60 months consecutive to the sentence on
the conspiracy and drug trafficking counts would be imposed as
required under the applicable statute.



                                         7
months, the statutory mandatory minimum sentence. The Government

also objected to the drug weight described in the PSR, pointing

to some of the anecdotal testimony of other drug deals from some

of its trial witnesses. The district court agreed that the drug

weight in the PSR underestimated the amount of PCP within the

realm of relevant conduct, and adopted an increased drug weight,

which bumped Howard’s base offense level from 26 to 28, slightly

modifying the Guidelines range to 120 to 121 months. 4

      The   district    court       next       considered     whether    to    depart

upwardly,    a    possibility      the     court    had     previously    expressed

pursuant    to    Federal    Rule    of     Criminal      Procedure     32(h).    The

Government argued that under U.S.S.G. § 4A1.3(a)(1), an upward

departure    was    warranted       because        Howard’s    criminal       history

category (III) substantially underrepresented the seriousness of

his   criminal    history.    It    requested       an    upward   departure     to   a

criminal history category of VI, which, at an offense level of

28, yielded a sentencing range on the drug trafficking counts of

140   to    175    months.    Thus,        in    its     initial    allocution        at

sentencing, the Government urged the district court to impose a

sentence within that Guidelines range.



      4
       Hereafter, we treat Howard’s final Guidelines calculation
on the drug trafficking counts, with grouping and before the
departure, as offense level 28, criminal history category III.



                                           8
      The district court was not satisfied. It elected to analyze

Howard as       a    “de   facto”     career    offender   and   thereby   consider

Howard’s otherwise stale (and thus unscored) prior convictions.

In so doing, the court arrived at a criminal history category of

VI   and   an       offense   level    of   37.   After    following   the   Career

Offender Guidelines, the district court arrived at a sentencing

range of 420 months to life for the conspiracy charge in Count

One, and a range of 360 months to life for the substantive

charges in Counts Two through Ten, which carried a statutory

maximum of 360 months. 5




      5
       The district court then suggested that it was proper to
add “the 60 months consecutive” for Count Eleven (“the gun
count”) on top of the “420 months to life on count 1 and [the]
360 months on counts 2 through 10.” J.A. 725. This suggestion
was erroneous, however, because § 4B1.1(c) of the Sentencing
Guidelines already factors in a conviction under 18 U.S.C. §
924(c) (“the gun count”) in prescribing the appropriate career
offender guideline range.   Section 5G1.2 of the Guidelines and
the accompanying application notes then provide instructions on
how to apportion a career offender sentence to ensure that the
sentence complies with all statutory minimums. For instance, if
the district court here had selected a sentence of 420 months,
360 months would have been apportioned to Count 1 (the
conspiracy count) and 60 months would have been apportioned to
Count 11 (the gun count) to comply with the requirements of 18
U.S.C. § 924(c).   See U.S.S.G. § 5G1.2 app. n.4(B)(i).    It is
impossible,   however,   to   subtract   a   mandatory  60-month
consecutive sentence from a sentence of life in prison.      The
district court’s sentence in this case - life in prison plus 60
months - was therefore consistent with the Guidelines.



                                            9
     The district court next considered the § 3553(a) factors

and concluded that Howard deserved the maximum sentence of life

in prison:

     I do think for all the reasons outlined under the 3553
     (a) factors, the nature and circumstances of the
     offense, these 11 very serious offenses, the history
     and   characteristics  of   this  defendant  and   the
     unrelenting, unrepenting, unreformed drug dealing,
     society needs to be protected. He needs to be
     incapacitated. People need to be deterred. There needs
     to be just punishment. There needs to be serious
     consequences for serious crimes.

J.A. 737-38. 6 The court imposed a sentence of life imprisonment

on Count One, 360 months imprisonment (concurrent) for Counts

Two through Ten, and 60 months (consecutive) for Count Eleven.

It also stated that, in the alternative, it would impose the

same sentence as an alternative variant sentence.

     At the subsequent hearing on the petition for revocation of

supervised   release,   the   court    revoked   supervised   release   and

sentenced Howard to the maximum possible sentence: 60 months

imprisonment    consecutive     to     the   sentences    for    his    new

convictions. Thus, Howard is now serving a consolidated sentence

of life plus 120 months. As we have mentioned, although Howard

timely appealed both judgments, he has abandoned the appeal of

his supervised release revocation sentence.


     6
       Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.



                                      10
                                            II.

      Howard presents two issues. First, we consider his argument

that the district court erred in denying his motion for judgment

of    acquittal    because       the    evidence       presented       at    trial     was

insufficient      to    support   his       convictions.    Second,         pursuant    to

supplemental briefing ordered nostre sponte by this Court, we

consider   whether       the    district      court    imposed     a    substantively

unreasonable sentence. We address each issue in turn.

                                             A.

      Howard contends that the evidence presented at trial was

insufficient      as    a     matter    of    law     to   sustain      each    of     his

convictions.      For    purposes      of    our    analysis,    we     have     grouped

Howard’s distribution convictions together and will discuss the

sufficiency of the evidence for the conspiracy, distribution,

and firearm convictions separately.

      We review a district court’s decision to deny a motion for

judgment of acquittal, pursuant to Rule 29 of the Federal Rules

of Criminal Procedure, de novo. United States v. Smith, 451 F.3d

209, 216 (4th Cir. 2006). In its assessment of a challenge to

the    sufficiency      of     evidence,      a     reviewing    court       views     the

evidence “in the light most favorable to the prosecution and

decide[s] whether ‘substantial evidence’ supports the verdict.”

United States v. Jeffers, 570 F.3d 557, 565 (4th Cir. 2009)

(quoting   Smith,       451    F.3d    at     216).    Substantial          evidence    is

                                             11
“evidence       that       a    reasonable         finder      of   fact          could    accept    as

adequate and sufficient to support a conclusion of a defendant’s

guilt    beyond        a       reasonable       doubt.”        Smith,         451    F.3d    at     216

(citation and internal quotation marks omitted).

       We begin our analysis with Count One, which charged that

Howard conspired to distribute and possess with the intent to

distribute       100        grams       or     more      of    a    mixture          or    substance

containing a detectable amount of PCP. Howard contends that the

Government failed to establish evidence that he was aware of, or

agreed    to    participate            in,     a    conspiracy.          He       argues    that    the

Government made no showing of mutual trust, standard dealings,

or   drug      fronting         between        himself        and   any       coconspirator.         We

disagree.

        To establish a drug conspiracy under 21 U.S.C. § 846, the

government must prove that “(1) [the defendant] entered into an

agreement with one or more persons to engage in conduct that

violated 21 U.S.C. §[] 841(a)(1). . . ; (2) that [the defendant]

had knowledge of that conspiracy; and (3) that [the defendant]

knowingly       and        voluntarily          participated         in       the     conspiracy.”

United States v. Mastrapa, 509 F.3d 652, 657 (4th Cir. 2007).

Given the “clandestine and covert” nature of conspiracies, the

government       can           prove     the       existence        of        a     conspiracy       by

circumstantial evidence alone. United States v. Burgos, 94 F.3d

849,     857    (4th        Cir.       1996)       (en   banc).      A        mere    buyer-seller

                                                   12
relationship is insufficient to support a conspiracy conviction.

United States v. Hackley, 662 F.3d 671, 679 (4th Cir. 2011).

However, such evidence “‘is at least relevant (i.e. probative)

on the issue of whether a conspiratorial relationship exists.’”

Id. (quoting United States v. Mills, 995 F.2d 480, 485 n.1 (4th

Cir.    1993)).       “[E]vidence           of        continuing         relationships         and

repeated transactions can support the finding that there was a

conspiracy, especially when coupled with substantial quantities

of drugs.” United States v. Reid, 523 F.3d 310, 317 (4th Cir.

2008) (citing Burgos, 94 F.3d at 858).

       Against     this     legal         framework,         we     do    not    hesitate       to

conclude that the Government presented sufficient evidence to

support the conspiracy conviction. Several witnesses testified

to    Howard’s     role     in      the    PCP        drug    trade      in     Wilson,    North

Carolina. Howard and D.W. sourced PCP from the same Washington,

D.C. supplier. When D.W.’s supply of PCP was exhausted, he would

refer       customers     to     Howard.         Howard,       in     turn,      would     refer

customers to D.W. when his own supply was low. At times, both

men purchased PCP from one another when traveling to D.C. was

inopportune.       Howard      also       sold    PCP    to       frequent      customers       who

often resold the drugs. A.I. testified that she regularly sold

PCP    in    Wilson   and      at   times    she       replenished         her    supply       from

Howard,      her   “local      source.”      J.A.       285.      R.W.    testified       to    his

practice of selling low-quality PCP before purchasing potent PCP

                                                 13
from Howard in an effort to regain customers. Taken together,

this evidence demonstrated that Howard was part of a “loosely-

knit association of members linked only by their mutual interest

in sustaining the overall enterprise of catering to the ultimate

demands of a particular drug consumption market” in the Wilson

area.    United         States       v.    Banks,       10   F.3d     1044,     1054        (4th   Cir.

1993). Accordingly, the jury’s verdict as to Count One is amply

supported.

                                                      B.

        Turning         to    the    distribution            convictions         in      Counts     Two

through Ten, we also find that the Government’s evidence was

sufficient         to    sustain          the    convictions.         Howard        merely    states,

without explanation, that his motion for judgment of acquittal

as to the distribution convictions should have been granted.

While such a passing, conclusory assertion is “insufficient to

raise    on    appeal          any    merits-based           challenge         to     the    district

court’s ruling[,]” see Eriline Co. S.A. v. Johnson, 440 F.3d

648, 653 n.7 (4th Cir. 2006), we nevertheless briefly address

the abundance of evidence demonstrating Howard’s guilt.

        To    prove          that     a     defendant         distributed            a     controlled

substance          in        violation          of     21    U.S.C.       §    841(a)(1),          “the

prosecution         is        obliged      to        prove   ‘that       (1)    [the]       defendant

knowingly or intentionally distributed the controlled substance

alleged       in    the        indictment,            and    (2)    at    the       time     of    such

                                                      14
distribution the defendant knew that the substance distributed

was a controlled substance under the law.’” United States v.

Alerre,   430     F.3d    681,    689     (4th          Cir.    2005)      (alteration          in

original) (quoting United States v. Tran Trong Cuong, 18 F.3d

1132, 1137 (4th Cir. 1994)).

       The Government presented evidence of controlled purchases

between Howard and several others, including two confidential

informants and a cooperating individual. C.B. purchased dippers

and one ounce of PCP from Howard. A.I. directly purchased PCP

from Howard on one occasion, and Howard personally delivered an

ounce of PCP to T.W.’s home. Count Eight further charged Howard

with   aiding    and     abetting   the      distribution            of    PCP,    which        the

Government established by virtue of A.I.’s testimony that she

purchased PCP through Howard’s middle man, Desmond Farmer. The

Government’s evidence is plainly sufficient as to Counts Two

through Ten, and we discern no infirmity in the jury’s verdicts.

                                             C.

       We next turn to Count Eleven, which charged that Howard

“knowingly      possessed     a     firearm         in     furtherance            of     a   drug

trafficking offense . . . in violation of Title 18 United States

Code   924(c).”    J.A.     68.   In    order       to    convict         Howard       of    Count

Eleven,    the    prosecution          was        required      to        prove        beyond    a

reasonable doubt that Howard “(1) used, carried, or possessed a

firearm   (2)     in     furtherance         of     a    drug    trafficking             crime.”

                                             15
Jeffers, 570 F.3d at 565 (citing 18 U.S.C. § 924(c)(1)(A)). In

United States v. Lomax, 293 F.3d 701 (4th Cir. 2002), we defined

the statutory term “furtherance” in § 924(c) as “the act of

furthering, advancing, or helping forward.”                          293 F.3d at 705.

Thus, we concluded that § 924(c) “requires the government to

present evidence indicating that the possession of a firearm

furthered,       advanced,      or    helped        forward    a     drug      trafficking

crime.”   Id.       Whether    the    firearm       served     such      a     purpose,    we

explained, is a factual inquiry. Id. Factors that could lead a

fact finder to conclude that a defendant possessed a firearm in

furtherance of a drug crime include: “the type of drug activity

that is being conducted, accessibility of the firearm, the type

of   weapon,     whether      the    weapon    is    stolen,       the   status     of    the

possession (legitimate or illegal), whether the gun is loaded,

proximity      to     drugs     or    drug     profits,        and       the     time     and

circumstances under which the gun is found.” Id. (citation and

internal quotation marks omitted).

      The evidence adduced by the Government here crosses the

threshold from minimal to legally sufficient. Officers found a

loaded pistol with a round in the chamber and ammunition in the

living    room      of   Howard’s      residence.        In    the       adjoining       den,

officers found a working police scanner and plastic vial caps.

The Government also established, from the testimony of Q.S. and

D.W., that Howard often sold PCP from the shed on his property.

                                          16
While officers did not find drugs in Howard’s home at the time

of   the   search,    the   theory    that      the   presence    of    the   firearm

served to protect Howard from a potential theft of his drugs or

profits is nevertheless a plausible one. See Lomax, 293 F.3d at

705.

       The firearm was readily accessible to Howard; it was hidden

beneath a couch cushion in the living room. The ammunition was

stored nearby in the couch’s center console. The firearm and

drug paraphernalia were also in close proximity to one other, as

they were found in adjoining rooms. Drawing from the evidence of

black plastic caps and the cardboard with the “discountvial.com”

web address and vial description, a rational jury could conclude

beyond     a   reasonable     doubt   that      Howard   used    the    firearm    to

protect his drug trafficking operation. It may be that, at the

time of the search, Howard’s supply of PCP was low or exhausted,

and that he was preparing for a new supply; this might explain

the absence      of   drugs   in   the    residence.     But     such   speculative

hypotheticals have no role to play in our sufficiency appraisal.

For these reasons, we decline to find error in the district

court’s denial of Howard’s motion for judgment of acquittal as

to Count Eleven.

                                         III.

       Having affirmed Howard’s convictions, we now decide whether

the sentence imposed by the district court was unreasonable.

                                          17
                                                A.

       We review the reasonableness of a sentencing decision under

an abuse of discretion standard. United States v. Heath, 559

F.3d       263,    266    (4th        Cir.    2009).       “This    standard       of    review

encompasses        both        procedural       and    substantive       reasonableness.”

United      States       v.    Myers,    589     F.3d      117,    123   (4th     Cir.    2009)

(citation omitted). A district court commits procedural error

when,       for    example,         it   fails        to   calculate        (or    improperly

calculates)        the        Guidelines      range,       fails    to   consider        the    §

3553(a)       factors,         or     selects     a     sentence     based        on    clearly

erroneous facts. Gall v. United States, 552 U.S. 38, 51 (2007).

Howard      does    not       claim    that    the    district      court    committed         any

procedural error, and we agree with that assessment. 7 Our review

of Howard’s sentence, therefore, is limited only to substantive

reasonableness.

       A review for substantive reasonableness takes into account

the “totality of the circumstances.” Id. As part of this review,

we consider

       the extent of any variance from the Guidelines range .
       . . [I]f the sentence is outside the Guidelines range,

       7
       As we explained at n.5, supra, the district court’s
misstatement of the proper method for factoring in an 18 U.S.C.
§ 924(c) conviction under the Career Offender Guidelines did not
affect the sentence the court chose to impose in this case.




                                                18
     the   court   may   not    apply   a   presumption  of
     unreasonableness. It may consider the extent of the
     deviation, but must give due deference to the district
     court’s decision that the § 3553(a) factors, on a
     whole, justify the extent of the variance.

Id. If the district court deviates from the Guidelines range and

provides two or more independent rationales for its deviation,

the appellate court cannot declare the sentence unreasonable if

it finds fault with only one of the rationales. United States v.

Evans,   526       F.3d   155,   165    (4th       Cir.    2008).    Such    an   approach

“would   be        wholly    inconsistent            with      the   Supreme      Court's

directives to examine the totality of the circumstances, and to

defer to the considered judgment of the district court.” Id.

                                              B.

     The district court reached its life imprisonment sentence

by making an upward departure based on Howard’s de facto career

offender status, and by reasoning that the § 3553(a) factors

supported      a    sentence     at     the        top    of   the   Guidelines      range

determined after the departure. Because we are persuaded that

the extent of the upward departure is unwarranted and amounts to

an abuse of discretion, and because, in any event, a sentence of

life in prison on this record is not justified by consideration

of the § 3553(a) factors as articulated by the district court,

we   conclude        that    the       sentence          imposed     is     substantively

unreasonable.



                                              19
                                            1.

     Howard’s       original         Guidelines       range      called    for       120-121

months of imprisonment, plus a consecutive 60 months for the

firearm offense. The district court made an upward departure and

treated Howard as a de facto career offender, which resulted in

an increase from criminal history category III to VI, and an

increase from a base offense level of 28 to 37.

     Section        4B1.1(a)       of     the    Guidelines        provides          that     a

defendant is a career offender if: (1) the defendant was at

least eighteen years old at the time of the commission of the

instant   offense         of   conviction;       (2)     the     instant       offense       of

conviction is a felony that is either a crime of violence or a

controlled substance offense; and (3) the defendant has been

convicted    of     two    prior     crimes,      each      of   which    was    a    felony

conviction     of    either      a      crime    of    violence     or     a    controlled

substance offense. U.S.S.G. § 4B1.1(a). A district court may

depart directly to the career offender Guideline range when the

defendant’s       criminal     history      demonstrates         that     the    defendant

would be sentenced as a career offender “but for the fact that

one or both of the predicate convictions may not be counted.”

United States v. Cash, 983 F.2d 558, 562 (4th Cir. 1992). Thus,

de   facto    career       offender       status       is    permissible        when        the

defendant has been convicted of two prior crimes, each of which

constitutes a career offender predicate offense. Myers, 589 F.3d

                                            20
at 126. While the de facto career offender doctrine is settled

law    in    the     Fourth   Circuit,        see    Cash,       983   F.2d   at   562,    the

district court’s departure to de facto career offender status in

this case resulted in a sentencing range — and, ultimately, an

actual sentence — that was “greater than necessary” to achieve

the purposes of federal sentencing. 18 U.S.C. § 3553(a); see

also Rita v. United States, 551 U.S. 338, 350 (2007) (explaining

that the Guidelines seek to embody § 3553(a) factors and that

they       reflect    “a   rough       approximation        of    sentences    that     might

achieve § 3553(a)’s objectives”).

       “When       reviewing       a    departure,         we    consider     whether      the

sentencing         court   acted       reasonably         both    with   respect    to     its

decision      to     impose   such      a    sentence      and    with   respect      to   the

extent       of    the   divergence         from    the    sentencing     range.”     United

States v. McNeill, 598 F.3d 161, 166 (4th Cir. 2010) (citation

and internal quotation marks omitted), aff’d on other grounds,

131 S. Ct. 2218 (2011). 8 An upward departure may be warranted if


       8
       We have recognized that our deferential reasonableness
review of sentences is the same whether the district court
departed within the formal strictures of the Sentencing
Guidelines or, instead, imposed a variant sentence outside the
explicit boundaries of the Sentencing Guidelines. United States
v. Hargrove, 701 F.3d 156, 160 n.1 (4th Cir. 2012); United
States v. Diosdado–Star, 630 F.3d 359, 365 (4th Cir. 2011).
Thus, in this case, the district court’s explanation that it
would have imposed the same sentence as a variant sentence even
if it were determined that its upward departure to the career
offender guideline was an abuse of discretion does not alter our
(Continued)
                                               21
“reliable   information        indicates     that   the    defendant’s        criminal

history category significantly underrepresents the seriousness

of the defendant’s criminal history or the likelihood that the

defendant will commit other crimes.” U.S.S.G. § 4A1.3(a)(1). A

district court may base an upward departure pursuant to § 4A1.3

on a defendant’s prior convictions, even if those convictions

are too old to be counted in the calculation of the Guidelines

range. See § 4A1.2(e) (describing the applicable time period for

calculating prior sentences).

      Howard’s conviction in 1997 for conspiracy to distribute

and possess with intent to distribute cocaine and cocaine base

undoubtedly     qualified      for   calculation.      Howard       was   twenty-five

years old when he was convicted, and he served more than ten

years in prison. The district court found that three otherwise

stale convictions, incurred by Howard from 1990 and earlier,

justified      its   qualification      of    Howard      as   a    virtual    career

offender. In 1988, at the age of sixteen, Howard pled guilty to

two   counts    of   selling    cocaine      to   an   undercover         officer.   He

served approximately four months in prison. In 1990, at the age

of eighteen, Howard pled no contest to voluntary manslaughter

and served nine months in prison and one additional month after



analysis of the substantive            reasonableness          of   Howard’s     life-
plus-sixty-months sentence.



                                        22
his    parole    was    revoked         for   technical      violations.         While    the

inclusion of Howard’s prior convictions in the calculation of

the Guidelines range has raised no procedural error, it resulted

in a range that was nothing short of extreme.

                                              2.

         The district court’s decision to upwardly depart rested

heavily    on     our     Myers     decision,        which     the        district   court

concluded was “almost on all fours.” J.A. 718. We disagree with

that   characterization.           In    Myers,     we   rejected     the       defendant’s

argument    that        his   sentence        was    substantively             unreasonable

because the district court made an upward departure based on his

outdated    predicate         convictions.          Only     one     of    Myers’s       four

predicate convictions had been counted in his PSR, and but for

the dates of his earlier convictions, and an intervening term of

imprisonment, Myers would have qualified as a career offender.

       Similarly, here, Howard would have been classified as a

career offender had his juvenile convictions for the sale of

cocaine    and    voluntary        manslaughter       not    been    outdated.       Myers,

however,        displayed      a        consistent         pattern        of    recidivism

immediately upon release from prison, and an offense for which

Myers was convicted involved conspiracy to distribute cocaine

base with an eighteen-year-old female. Most of Howard’s serial

convictions occurred between the ages of sixteen and eighteen.



                                              23
After Howard’s release from prison in June 2008, he held steady

employment for more than a year.

       The     facts        of     the        present          case     are      also    readily

distinguishable from those in United States v. Lawrence, 349

F.3d    724    (4th       Cir.    2003),       and    Cash,       in    which    we     similarly

affirmed decisions by district courts to depart upward on the

basis    of    de   facto        career       offender         status.    In     Lawrence,    the

district court determined that an upward departure of one level

in the criminal history category did not reflect the seriousness

of Lawrence’s past criminal conduct. The court concluded that

Lawrence was a de facto career offender, in part, because two of

his     qualifying        predicate           convictions         were     consolidated       for

sentencing       purposes.        Lawrence’s          criminal         history    was    violent,

and    quite   dissimilar          to    Howard’s          record.      While     Lawrence   and

Howard    share       a    lengthy       juvenile         record,       Lawrence’s       juvenile

convictions consisted largely of thefts and assaults. Lawrence

hardly       ever     completed          parole           or    probation        successfully.

Furthermore,        Lawrence       attempted          a    jail       break    and    carjacking

while en route to prison, and he admitted to committing two

other bank robberies for which he was never convicted.

       The defendant in Cash challenged his upward departure on

the     ground      that         one     of     his        predicate          convictions     was

constitutionally invalid. We concluded that the district court

was free to consider a constitutionally invalid conviction as

                                                 24
evidence     of     the    defendant’s      prior       criminal      conduct      for   the

purpose      of    determining       the    extent       of     a    departure.      Cash’s

criminal history included a remarkable number of forty prior

adult convictions over a seventeen-year period, a far cry from

Howard’s criminal record.

      An    additional       point   is    worth       noting.       Despite   the    grave

criminal records that Myers, Lawrence, and Cash had in common,

not one of those defendants was sentenced to life in prison as a

result of an upward departure to the career offender Guideline.

The district court sentenced Myers to 360 months imprisonment;

Lawrence’s sentence was a total of 262 months of imprisonment;

and    the        district    court        sentenced          Cash     to    210     months

imprisonment.        These   sentences       pale      in   comparison       to    Howard’s

sentence of life imprisonment plus 60 months. Cf. United States

v.    Abu    Ali,     528    F.3d     210,       261     (4th       Cir.    2008)(“[W]hen

determining whether the district court’s proffered justification

for    imposing        a     non-guidelines            sentence       is    sufficiently

compelling to support the degree of the variance, common sense

dictates that a major departure should be supported by a more

significant justification than a minor one.”) (internal citation

and quotations omitted).

                                            3.

      We acknowledge that Howard would never be mistaken for a

model citizen, but we cannot ignore the fact that most of his

                                            25
serious criminal convictions occurred when he was eighteen years

old or younger. Two convictions, when Howard was seventeen years

old,    involved     providing      fictitious         information        to      a    police

officer.    Howard’s        other   juvenile         convictions        include         second

degree    trespass     and    possession       of    cocaine.       Three      convictions

that Howard received as an adult are related to driving without

a license or driving while his license was revoked. The facts

presented   here      are    thus   distinct        from    those    in     our       relevant

circuit precedent.

       The district court abused its discretion by focusing too

heavily on Howard’s juvenile criminal history in its evaluation

of    whether   it    was    appropriate       to    treat       Howard     as    a    career

offender and in its weighing of the § 3553(a) factors after

having done so. An appellate court owes “due deference” to a

district court’s assessment of the § 3553(a) factors, and mere

disagreement with the sentence below is “insufficient to justify

reversal of the district court.” Gall, 552 U.S. at 51. A review

for    substantive        reasonableness,           however,      “demands        that        we

proceed    beyond     a   formalistic     review       of    whether       the        district

court recited and reviewed the § 3553(a) factors and ensure that

the    sentence      caters    to   the    individual            circumstances          of    a

defendant, yet retains a semblance of consistency with similarly

situated    defendants.”       Evans,     526       F.3d    at    167     (Gregory,          J.,

concurring).

                                          26
       Since the Supreme Court’s decision in Gall, this Court has,

on     rare      occasion,             found      a     district        court’s     sentence

substantively unreasonable. In United States v. Engle, 592 F.3d

495 (4th Cir. 2010), we vacated a district court’s sentence of

four years probation for a defendant convicted of tax evasion

because we could not glean from the district court’s decision

why it failed to impose a term of imprisonment as recommended by

the Guidelines. We also addressed the substantive component of

the sentence and noted that the district court committed error

by its “near-exclusive focus on Engle’s financial ability to pay

restitution.” Engle, 592 F.3d at 504. We noted that “[i]t may

well    be     that     in    many       cases,       the    sentencing     decision        will

ultimately turn on a single § 3553(a) factor.” Id. However, we

viewed the district court’s rationale of declining a term of

imprisonment      based        solely       on    the   defendant’s       ability      to    pay

restitution as a “constitutionally suspect” ground. Id. at 505.

       Here,    too,     the      district       court      focused     extensively      on    a

single factor — Howard’s early criminal history — and it did so

at   the      expense    of       a    reasoned        analysis    of     other   pertinent

factors.       “Sentencing            courts     remain      obligated      not   to    ‘give

excessive       weight       to       any   relevant        factor’   and    to   impose      a

sentence ‘which effect[s] a fair and just result in light of the

relevant facts and law.’” United States v. Tucker, 473 F.3d 556,

562 (4th Cir. 2007) (quoting United States v. Green, 436 F.3d

                                                 27
449, 457 (4th Cir. 2006)); see also United States v. Hampton,

441 F.3d 284 (4th Cir. 2006) (vacating defendant’s sentence as

unreasonable       because        the        district   court      relied    on   only   one

aspect of one § 3553(a) factor).

      The district court began its discussion of the § 3553(a)

factors    by    discussing            the    “nature   and     circumstances”      of   the

offense and “history and circumstances of the defendant.” J.A.

733. The court ticked through the instant offenses of conviction

and stated that it understood the difficult circumstances in

which    Howard       was    reared.         J.A.    733.   The    district   court      then

summarized Howard’s criminal record, labeling it as “robust.”

J.A. 733. As we have described, Howard received most of his

convictions       when      he    was    eighteen       years     old   or   younger.     The

Supreme Court has recognized, in the sentencing context, the

diminished culpability of juvenile offenders, given their lack

of maturity, vulnerability to social pressures, and malleable

identities. See, e.g., Miller v. Alabama, 132 S. Ct. 2455, 2464

(2012) (holding that a state sentencing scheme that mandated

life without parole for offenders under the age of eighteen at

the     time    the      offense         was     committed        violates    the   Eighth

Amendment); Graham v. Florida, 560 U.S. 48, 68 (2010) (adhering

to Roper’s statements regarding the nature of juvenile offenders

and holding that a life without parole sentence for a juvenile

defendant       who    did       not    commit       homicide     violates    the   Eighth

                                                28
Amendment’s prohibition on cruel and unusual punishment); Roper

v. Simmons, 543 U.S. 551, 569-70 (2005) (describing these three

general       differences      between    juveniles          under    eighteen        and

adults).      “These   salient       characteristics         mean    that    ‘[i]t    is

difficult even for expert psychologists to differentiate between

the juvenile offender whose crime reflects unfortunate transient

immaturity, and the rare juvenile offender whose crime reflects

irreparable corruption.’” Graham, 560 U.S. at 68 (quoting Roper,

543 U.S. at 573).

       The district court’s sentence failed to appreciate what we

cannot ignore – that the three predicate convictions, upon which

the district court focused so heavily in assessing its departure

and sentencing options, occurred when Howard was between sixteen

and eighteen, and that youth is a “mitigating factor derive[d]

from    the    fact    that    the    signature        qualities     of     youth     are

transient;       as    individuals       mature,       the     impetuousness         and

recklessness that may dominate in younger years can subside.”

Roper, 542 U.S. at 570 (citation and internal quotation marks

omitted). Cf. Barry C. Feld, The Youth Discount: Old Enough To

Do The Crime, Too Young To Do The Time, 11 Ohio St. J. Crim. L.

107, 137 (2013) (“The [Supreme] Court’s jurisprudence of youth

recognizes that juveniles who produce the same harms as adults

are    not    their    moral    equals    and     do     not   deserve       the     same

consequences for their immature decisions.”).

                                         29
                                              4.

      We    are      persuaded,       as     well,     that     the        district      court

committed       an    abuse    of     discretion       insofar      as      it    concluded,

summarily, that a life sentence was not greater than necessary

in this instance based on its belief that Howard was “at the

top” of its list of criminal offenders. J.A. 720. According to

the court, Howard was, at his core, a career criminal: “It’s who

he is. It is what he has done. It’s what he has always done.

It’s how he lives his life.” J.A. 722. Despite the fact that

Howard     is    now    a     middle-aged          offender,    the        district     court

predicted that, “the likelihood of recidivism for this man [is]

100 percent. Absolutely 100 percent. If he is living free, he

will be committing crimes. He will be dealing drugs. It’s who he

is. It’s what he does.” J.A. 727. The court, in an apparent

attempt    to     justify      the    life    sentence       that     it    was    about    to

impose,     noted      the     need     to    deter     Howard        individually,         to

incapacitate him, and to “prevent [him] from poisoning people.”

J.A. 735.

      Given     the    long    sentence       (short    of     life)       that    Howard   no

doubt would have received from any federal judge reviewing the

instant record, sound empirical evidence strongly suggests that

the likelihood that Howard will recidivate upon his release is

substantially lower than the district court suggested. Howard

was   forty-one        years   old     when    he     was    sentenced,          and   studies

                                              30
demonstrate that the risk of recidivism is inversely related to

an inmate’s age. A 2014 Bureau of Justice Statistics report,

which tracked the recidivism rates of state prison inmates for

five years post-release, notes that three years after release

from prison, 75.9% of inmates age 24 or younger at the time of

release had been rearrested for a new offense, compared to 69.7%

of inmates ages 25 to 39, and 60.3% of inmates age 40 or older.

Matthew R. Durose, et al., Recidivism of Prisoners Released in

30 States in 2005: Patterns from 2005 to 2010, Bureau of Justice

Statistics                              12                              (2014),

http://www.bjs.gov/index.cfm?ty=pbdetail&iid=4986.                  A      2002

report, which tracked inmates three years after release, noted

that   more   than   80%   of   prisoners    under     18   were   rearrested,

compared to 45.3% of those age 45 or older. Patrick A. Langan et

al., Recidivism of Prisoners Released in 1994, Bureau of Justice

Statistics                              12                              (2002),

http://www.bjs.gov/index.cfm?ty=pbdetail&iid=1134.                 No     doubt

statistics for offenders released after age 60 are even more

compelling.   See    generally   Vera     Inst.   of   Justice,    It’s   About

Time: Aging Prisoners, Increasing Costs, and Geriatric Release

(April    2010),      http://www.vera.org/pubs/its-about-time-aging-

prisoners-increasing-costs-and-geriatric-release-0.                     Indeed,

there is no reason to believe that offenders sentenced in North

Carolina are significantly different in this regard from those

                                     31
sentenced in, say, Iowa: “There is a statistically significant

drop in recidivism for offenders aged 45 to 54 compared with 35

to 44 year olds, and rates for those aged 55 and older are even

lower.”    Lettie    Prell,       Iowa       Recidivism         Report:          Prison    Return

Rates,                FY                     2013                     7                   (2014),

http://www.doc.state.ia.us/Research/TrendsRecidivismFY13.pdf.

(All reports saved as ECF opinion attachments).

      One might gather from the district court’s statements that

it   was   sentencing       a   notorious          drug    lord       at    the     top    of    an

unremittingly      violent       and   widespread          organization,            but    Howard

hardly fits that description. Under § 3553(a)(1), courts are to

consider “the nature and circumstances of the offense and the

history    and    characteristics            of    the    defendant.”            Part     of   this

analysis     contemplates        the     “extent          and    seriousness”             of     the

instant offense. United States v. Diosdado-Star, 630 F.3d 359,

367 (4th Cir. 2011). As noted above, the district court recited

the offenses for which Howard was convicted. However, the facts

underlying       Howard’s       convictions         simply       do        not    warrant        the

sentence    imposed.       Howard      was    not    a    drug    kingpin.          He     had   no

stronghold on the PCP market in Wilson. To the contrary, at

trial, several witnesses testified to their own participation in

the PCP drug trade. A.I., D.W., and R.W. all imported PCP from

Washington, D.C. into Wilson, just as Howard did. Indeed, by

virtue of the conspiracy conviction, the Government proved that

                                              32
Howard was no lone wolf in the Wilson PCP drug trade. Howard

also has not dealt drugs near children or school zones, and he

has    not       resorted      to     violence.         Howard’s      convictions        are   not

insignificant,           and     we    credit      the     Government’s          contention     at

sentencing that the PCP drug problem in Wilson is terrible and

pervasive.        J.A.    730.        However,      by    all    of   the    descriptions        of

Howard presented at trial and reflected in the record before us,

he was little more than a run-of-the-mill drug dealer.

                                                   5.

       Notably, even after the district court had expressed its

view       that    Howard      should        be    treated       as    a    de   facto     career

offender,         the   Assistant        United         States   Attorney        herself      twice

urged      the    court     to      impose     a   far     shorter     sentence        than    that

ultimately         imposed       by     the       district       court.     In    its    initial

allocution at sentencing, in supporting its request for a modest

upward      departure,         and     even       while    acknowledging         the     district

court’s elaboration of its belief that Howard should be treated

as     a    career      offender,        the       Government         requested     an     upward

departure only in his criminal history category (from III to

VI), and advocated for a sentence at the top of the resulting

range of 175 months. 9




       9
           The Assistant United States Attorney stated:

(Continued)
                                                   33
     The district court immediately challenged the prosecutor to

explain “why . . . shouldn't [the sentencing range] be higher.”

J.A. 720. After discussion, see id. at 720-25, the Government

agreed with the court that Howard should be treated as a career

offender, see id. at 726, but then, the Government suggested a

360-month   sentence   (mindful,    no   doubt,   that   through   the

combination of the mandatory consecutive 60-month sentence to be



     Thank you, Your Honor. Your Honor, as the court is
     familiar and has already referenced, the Government
     did file a motion for upward departure, but the court
     beat the Government to the punch in filing its notice.
     Your Honor, as I have set out in my motion, this
     defendant has, as the court has already mentioned, his
     robust criminal history, basically almost none of
     which was scored for the purposes of this PSR. Your
     Honor, not only does it involve drug trafficking since
     the age of 16, but also homicide, a voluntary
     manslaughter conviction was pled down from murder
     where the defendant received a six months sentence,
     and I have set out and I don't know that I need to
     talk about it in any kind of detail, kind of walking
     through the criminal history and how basically almost
     all of the criminal history overlaps each other. He is
     basically either on probation or on parole or on some
     sort of supervision just about during his entire
     criminal history and during the course of his time in
     the department of corrections, the bureau of prisons,
     didn't do terribly well there either. But based on
     those things, the fact that he really, you know, but
     for the age of the convictions would be a career
     offender, the Government is asking this court to
     upwardly depart and I think, as I set out in the
     motion for upward departure, I think the appropriate
     guideline range would be one of a 28 as a career
     offender as a VI, with advisory guideline range of 140
     to 175.

J.A. 719-20 (emphasis added).


                                   34
imposed on the gun count, and the still outstanding adjudication

of   the   supervised   release   violation,     another         ten   years    was

available to further seek retribution against Howard). 10

      We acknowledge, as we must, that no district court is ever

mandated to impose the sentence recommended by the prosecution;

the very idea is unthinkable in our constitutional system rooted

in an independent judiciary. Still, the prosecutorial experience

of the assistants in the Office of the United States Attorney in

any district can serve as an important pillar in the achievement

of one of the principal goals of the Sentencing Reform Act of

1984 and its system of (now advisory) Guidelines sentencing: the

avoidance of unwarranted sentencing disparities. See 28 U.S.C. §

991(b)(1)(B)    (describing    the   purposes        of   the    United    States

Sentencing   Commission);     U.S.S.G.    ch.   1,    pt.   A,    subpt.   3;    28

      10
       We note in passing that Howard’s coconspirators, D.W. and
R.W., who entered into plea agreements with the Government and
testified against Howard, see supra n.2, were sentenced to
prison terms of 131 months, and 76 months, respectively. We
further observe that, in a commonly-encountered reversal of
fortunes well known to the members of this Court, Howard himself
had pled guilty and provided “substantial assistance” to the
Government against others in connection with his 1997 drug
trafficking conviction in the Eastern District of North
Carolina, and thereby obtained a sentence reduction from 227
months to 150 months of incarceration pursuant to Federal Rule
of Criminal Procedure 35(b).

     It is in light of these kinds of considerations, among
others, that the sentencing recommendations of the members of
the Office of the United States Attorney are entitled to genuine
consideration by district courts.



                                     35
U.S.C. § 3553(a)(6)(instructing courts of “the need to avoid

unwarranted sentence disparities among defendants with similar

records who have been found guilty of similar conduct”). 11

                                       6.

     By   declaring      Howard   a    serial   recidivist       dedicated     to

dispensing “poison” with no hope of redemption, and by basing

this judgment on stale criminal history, the bulk of which was

non-violent     and   committed     when    Howard   was    a    juvenile,   the

district court failed in its effort to comply with the aims of

sentencing prescribed by § 3553(a)(2). 12 The sentencing purposes

set out in § 3553(a)(2) identify the need for the sentence to

reflect   the    seriousness      of    the   offense      and   provide     just

punishment,     afford   adequate      deterrence    to    criminal   conduct,

protect the public from the defendant’s crimes, and provide the

     11
       Cf. Berger v. United States, 295 U.S. 78, 88 (1935) (“The
United States Attorney is the representative not of an ordinary
party to a controversy, but of a sovereignty whose obligation to
govern impartially is as compelling as its obligation to govern
at all; and whose interest, therefore, in a criminal prosecution
is not that it shall win a case, but that justice shall be
done.”).
     12
       It seems quite apparent that the court was concerned that
Howard’s   decades-old  homicide   conviction,  which   in   the
representation of the prosecutor, had been “pled down” to
manslaughter, see supra n.9, especially justified, or at least
warranted, harsh sentencing treatment in this case. Without
passing on the propriety of that apparent choice, we simply
observe that Howard was not charged, convicted, or sentenced in
this case for any assaultive or other physically violent
behavior.



                                       36
defendant      with       rehabilitation.         “The       proper    application      of     §

3553(a) therefore requires a sentencing court to focus on the

four purposes of sentencing as applicable in a particular case,

and to consider, in determining a sentence that achieves those

purposes, the seven factors listed in § 3553(a)(1)-(7).” United

States v. Shortt, 485 F.3d 243, 249 (4th Cir. 2007) (emphases in

original); see also United States v. Dowell, --- F.3d ---, No.

13-4576,      at    *31    (4th   Cir.     2014).       “A    sentence     that      fails    to

fulfill      the    purposes      of    sentencing       cannot       be   saved,     even    if

supported by consideration of the six other factors.” Shortt,

485 F.3d at 249.

       The   district       court       plainly    sought      to     intone   all     of    the

principles         underlying       §    3553(a)(2)          when     it    announced        its

sentence.      It     stated      the      need    for        individual       and    general

deterrence, incapacitation, and just punishment. J.A. 735. There

is no doubt that the sentence sent a “message” of deterrence to

the people of Wilson and the Eastern District of North Carolina.

The district court made those intentions clear. But we simply

fail to see, on the whole record, how the life-plus-60-months

sentence reasonably reflects the seriousness of the offense or

just   punishment.         Manifestly,       it    is    a     sentence     “greater        than

necessary,” 18 U.S.C. § 3553(a), to achieve the purposes of §

3553(a)(2).



                                             37
     We    again     acknowledge        and    reiterate       that     the   sentencing

judge “is in a superior position to find facts and judge their

import under the § 3553(a) factors in the individual case[,]”

see Gall, 552 U.S. at 51, but a district court’s choice of

sentence   is   not       without   limit.         “Inherent      in   the    concept    of

reasonableness       is    the   notion       that    the   rare       sentence   may    be

unreasonable,      and     inherent     in    the    idea   of    discretion      is    the

notion that it may, on infrequent occasion, be abused.” Engle,

592 F.3d at 504 (citation and internal quotation marks omitted).

This case presents an example of that rare sentence presented to

us on those infrequent occasions. It goes without saying then,

that our holding is limited to the facts of this case, and we do

not suggest that all life sentences plus a term of years for

convictions     of        the    type    here        are    per    se     substantively

unreasonable.

                                             IV.

     For the reasons set forth, we affirm the convictions on all

counts, vacate the sentence as substantively unreasonable, and

remand this case for resentencing.


                                 JUDGMENT IN NO. 13-4296 AFFIRMED IN PART,
                                         AND VACATED AND REMANDED IN PART;
                                           APPEAL IN NO. 13-4299 DISMISSED




                                             38
