                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-5219


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

DIVINE JUSTICE REDDICK,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Louise W. Flanagan,
Chief District Judge. (5:08-cr-00130-FL-1)


Argued:   May 14, 2010                    Decided:   June 16, 2010


Before MOTZ, KING, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Stephen Clayton Gordon, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Anne Margaret
Hayes, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.   ON BRIEF: Thomas P. McNamara, Federal
Public Defender, Raleigh, North Carolina, for Appellant.   John
Stuart Bruce, Acting United States Attorney, Jennifer P. May-
Parker, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       In 2008, Divine Justice Reddick was convicted and sentenced

in    the   Eastern      District       of    North       Carolina        for       two    offenses

arising from his role in an armed bank robbery.                                Reddick pursues

two    appellate       challenges        to    his        aggregate        sentence        of   200

months.       First,         Reddick    maintains         that,      in    departing        upward

based on the inadequacy of his criminal history category, the

district     court     procedurally           erred       by   failing         to    comply     with

section 4A1.3 of the Sentencing Guidelines.                                    Second, Reddick

contends that the court substantively erred in departing upward

to the sentence that it imposed.                      As explained below, we reject

both contentions and affirm.



                                               I.

       On   May    15,       2008,    Reddick       was     charged       in    a    three-count

indictment with putting in jeopardy the life of another by using

a dangerous weapon in a bank robbery, in contravention of 18

U.S.C.      § 2113(d)        (Count    One);        using      and    carrying        a    firearm

during and in relation to a crime of violence, in contravention

of 18 U.S.C. § 924(c)(1)(A) (Count Two); and being a felon in

possession        of     a    firearm,        in     contravention             of     18    U.S.C.

§ 922(g)(1)       (Count       Three).         On     September           3,    2008,      Reddick

pleaded      guilty      to    Counts    One        and     Two      pursuant        to    a    plea

agreement     that     reserved        his    right       to   appeal      any       sentence     in

                                               2
excess of the advisory Guidelines range.                Pursuant to the plea

agreement, the prosecution dismissed Count Three.

     On    December    4,    2008,   Reddick’s     Presentence     Investigation

Report (the “PSR”) was submitted to the district court.                          On

Count One, the PSR recommended a Guidelines range of 51 to 63

months of imprisonment, predicated on a total offense level of

20 and a criminal history category of IV.               With respect to Count

Two, the PSR recognized that the applicable Guidelines sentence

was the statutory minimum consecutive term of 84 months.                   See 18

U.S.C. § 924(c)(1)(A)(ii); USSG § 2K2.4(b).

     In the “Impact of the Plea Agreement” section of the PSR,

the probation officer explained that the prosecution’s dismissal

of   Count     Three    significantly        impacted    Reddick’s        advisory

Guidelines range.           Had Reddick been convicted on Count Three,

the PSR explained, “he would have been designated as an Armed

Career Criminal and would be subject to a statutory penalty of

[180 months] to Life on that count and his criminal history

category would be VI rather than IV.”                 J.A. 93. *     Under that

scenario, Reddick would have been subject to (1) a Guidelines

range of 70 to 80 months on Count One; (2) a consecutive 84-

month     statutory    minimum    sentence    on    Count   Two;    and    (3)   a


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



                                        3
concurrent 180-month statutory minimum sentence on Count Three.

Thus, had he been convicted on Count Three, Reddick would have

faced    a   statutory     minimum     of   264    months.          Because      Reddick’s

advisory Guidelines range (51 to 63 months on Count One and a

minimum of 84 months on Count Two) fell well below 264 months,

the PSR specified that the district court “may wish to consider

an    upward   departure     pursuant       to    4A1.3       (Departures        Based     on

Inadequacy of Criminal History Category) and 5K2.21 (Dismissed

and     Uncharged     Conduct)    based         upon    the    dismissal         of    Count

[Three].”      Id. at 94.

       At the sentencing hearing conducted in December 2008, the

district court expressed concern with the discrepancy between

the advisory        Guidelines    range     calculated         by   the    PSR       and   the

minimum of 264 months that would have accompanied a conviction

on Count Three.        In response, the Government acknowledged that,

when it      agreed   to   dismiss     Count      Three,      it    had    miscalculated

Reddick’s predicate convictions and did not recognize that he

would have qualified as an armed career criminal had he been

convicted on Count Three.            The prosecution maintained, however,

that    a    within-Guidelines       sentence          on   Count    One       (51    to   63

months), plus 84 months on Count Two, would sufficiently serve

the sentencing factors of 18 U.S.C. § 3553(a).

       Nevertheless,       the    district        court       imposed      a     200-month

sentence,      consisting    of   an    above-Guidelines            sentence          of   116

                                            4
months on Count One and a consecutive 84 months on Count Two.

The   court         relied       on    two    separate       Guidelines         provisions     to

support       its    upward       departure.            First,     it   applied       Guidelines

section 4A1.3, which authorizes an upward departure when, inter

alia,     a    defendant’s            criminal         history    category       substantially

underrepresents the likelihood that he will commit other crimes.

See USSG § 4A1.3(a)(1).                     Second, the court applied Guidelines

section       5K2.21,        which      authorizes         an     upward   departure          that

reflects the actual seriousness of the defendant’s offense based

on conduct underlying a charge dismissed under a plea agreement.

Notably,       the    court       did      not    specify       the   extent     of   departure

attributable to each Guidelines provision, nor did it indicate

the Guidelines range to which it was departing.                                The court then

assessed        and        applied         the     § 3553(a)          sentencing       factors,

concluding          that     a    sentence        within     the      Guidelines      range    as

originally          calculated        would       be    insufficient       to    achieve      the

purposes of sentencing.                    Thus, it imposed an aggregate sentence

of 200 months.

      Reddick has filed a timely notice of appeal, and we possess

jurisdiction          pursuant        to     18   U.S.C.     § 3742(a)       and      28   U.S.C.

§ 1291.




                                                   5
                                          II.

      We   review    a    sentence       imposed       by     a    district       court      for

reasonableness,      applying      the    deferential              abuse    of   discretion

standard.     Gall v. United States, 552 U.S. 38, 46 (2007).                                This

standard of review encompasses both procedural and substantive

reasonableness.          Id. at 51.         We first ensure that the court

committed no significant procedural error, “such as failing to

calculate   (or     improperly      calculating)             the    Guidelines        range.”

Id.   If there is no procedural error, we review the sentence for

substantive     reasonableness,           taking            the     “totality         of    the

circumstances”       into      account    to     determine          whether      the       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).



                                         III.

                                          A.

      Reddick     first     challenges          his        sentence    as       procedurally

unreasonable,       maintaining      that       the        district    court      erred      in

departing     upward      on     Count    One         by     failing       to    apply       the

incremental approach mandated by Guidelines section 4A1.3.                                 That

provision, entitled “Departures Based on Inadequacy of Criminal

History    Category,”       authorizes      a     sentencing          court      to    depart

upward “[i]f reliable information indicates that the defendant’s

                                            6
criminal       history       category       substantially           under-represents           the

seriousness of [his] criminal history or the likelihood that

[he] will commit other crimes.”                      USSG § 4A1.3(a)(1).               After the

sentencing court determines that a section 4A1.3 departure is

warranted,      it     is    obliged       to   depart       on   an    incremental        basis,

moving        “horizontally          across          successive          criminal          history

categories        up   to     category          VI,”    and,      if    that        category    is

inadequate,       vertically         “to    successively          higher       offense     levels

until    it    finds     a    guideline         range       appropriate        to    the    case.”

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

also    United     States      v.    Harrison,         58    F.3d      115,    118    (4th     Cir.

1995).        In applying this incremental approach, the court may

“move to successively higher categories only upon finding that

the prior category does not provide a sentence that adequately

reflects the seriousness of the defendant’s criminal conduct.”

United States v. Cash, 983 F.2d 558, 561 (4th Cir. 1992).

        Reddick      contends        that,      in     imposing        an     above-Guidelines

sentence on Count One, the district court failed to employ the

incremental approach required by section 4A1.3.                                     He maintains

that     the    court        moved     directly         from      the       Guidelines       range

corresponding to an offense level of 20 and a criminal history

category of IV (51 to 63 months) to the range applicable to an

offense level of 24 and a criminal history category of VI (100

to 125 months) without first assessing whether the intermediate

                                                 7
criminal      history       category     of     V    or    the     intermediate       offense

levels of 21, 22, or 23 adequately reflected the seriousness of

his criminal conduct.               Accordingly, Reddick contends that the

court procedurally erred and that his sentence must be vacated.

       The fundamental flaw with this contention is that, even if

the district court failed to apply the incremental analysis of

Guidelines     section       4A1.3,      any       such    error     is    harmless.       See

United    States    v.      Lynn,     592      F.3d       572,    576     (4th   Cir.   2010)

(concluding     that     procedural         sentencing           errors    are   subject   to

harmless error review).              Notably, we have recognized that when

“a district court offers two or more independent rationales for

its    deviation,      an    appellate         court       cannot    hold    the    sentence

unreasonable if the appellate court finds fault with just one of

these rationales.”            United States v. Evans, 526 F.3d 155, 165

(4th Cir. 2008).         Here, in addition to Guidelines section 4A1.3,

the    district     court       also     relied           on     section    5K2.21,     which

authorizes an upward departure “to reflect the seriousness of

the offense based on conduct (1) underlying a charge dismissed

as part of a plea agreement . . . and (2) that did not enter

into    the    determination        of      the     applicable          guideline     range.”

Importantly, section 5K2.21 does not require a sentencing court

to apply any sort of incremental analysis when departing upward,

and Reddick does not contend that the court otherwise erred in

applying that provision.               In other words, the court offered a

                                               8
separate     and        procedurally      sound        rationale       for        its    upward

departure from Reddick’s advisory Guidelines range on Count One.

Thus, even if the court erred in departing under section 4A1.3,

Reddick’s     aggregate          sentence        of     200     months       is     otherwise

procedurally reasonable.               Evans, 526 F.3d at 165.

                                            B.

       Reddick next contends that his sentence is substantively

unreasonable.           The district court imposed a 116-month sentence

on Count One — notwithstanding the advisory Guidelines range of

51 to 63 months — and, as mandated by statute, also imposed a

consecutive 84 months on Count Two, for an aggregate sentence of

200    months.          Reddick    maintains           that    the     totality         of   the

circumstances fail to support such a deviation from the advisory

Guidelines range, rendering the court’s sentencing decision an

abuse of discretion.

       In   sentencing          Reddick,     the        district       court        carefully

assessed     the        sentencing       factors        set    forth     in       18     U.S.C.

§ 3553(a).         It    first    determined          that    the    seriousness        of   the

armed bank robbery underlying Reddick’s convictions warranted an

above-Guidelines sentence, as did his criminal history, which

consisted of three prior armed robberies.                           The court also found

that   Reddick      —     who    had    committed       the    offense    of       conviction

within six months of the termination of his parole on a prior

armed robbery conviction — was a “repeat offender, a recidivist”

                                             9
who lacked “respect for the law.”             J.A. 71.      Predicated on these

factors, the court concluded that an above-Guidelines sentence

was necessary to “promote respect for the law” and to “protect

the public from [Reddick].”             Id. at 70.           In explaining its

sentencing     decision,      the   court    emphasized      that     a   200-month

sentence     was   commensurate     with    the    statutory       minimum    of    264

months that Reddick would have received if he had been convicted

on   Count    Three.       Accordingly,      the   court    concluded        that    an

aggregate above-Guidelines sentence of 200 months would achieve

the sentencing goals of § 3553(a).

      In these circumstances, Reddick’s sentence must be deemed

substantively reasonable.           The district court, having carefully

and thoroughly applied the § 3553(a) sentencing factors, did not

abuse its substantial discretion in concluding that a within-

Guidelines     sentence       was   insufficient.           And,     although       its

deviation from Reddick’s Guidelines range was significant, the

court   offered    ample      justification    for   the    aggregate        sentence

that it imposed.        Accordingly, the court did not substantively

err in imposing its sentence.



                                       IV.

      Pursuant     to   the    foregoing,    we    reject    each    of   Reddick’s

contentions and affirm.

                                                                             AFFIRMED

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