                                     UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 19-4623


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

ANDRE ALAN THORPE, Dre,

                     Defendant - Appellant.



Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. James C. Dever III, District Judge. (5:18-cr-00187-D-1)


Submitted: May 15, 2020                                           Decided: June 10, 2020


Before WILKINSON, FLOYD, and QUATTLEBAUM, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Walter H. Paramore, III, LAW OFFICES OF W. H. PARAMORE, III, Jacksonville, North
Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P.
May-Parker, J.D. Koesters, Assistant United States Attorneys, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Andre Alan Thorpe appeals from his 480-month sentence entered pursuant to his

guilty plea to child pornography charges. The district court departed upwards to the

statutory maximum, pursuant to U.S. Sentencing Guidelines Manual § 5K2.21 (2018), on

the basis of Thorpe’s uncharged and dismissed criminal conduct. In the alternative, the

district court imposed the same sentence as alternative variance sentence. On appeal,

Thorpe asserts that his sentence was procedurally and substantively unreasonable. We

affirm.

          Thorpe asserts first that the district court erred by failing to comply with the

“incremental approach” in departing upwards. We review a sentence, including a departure

or variance sentence, for reasonableness “under a deferential abuse-of-discretion

standard.” Gall v. United States, 552 U.S. 38, 41 (2007). This review entails appellate

consideration of both the procedural and substantive reasonableness of the sentence. Id. at

51. In determining procedural reasonableness, we consider whether the district court

properly calculated the defendant’s advisory Guidelines range, gave the parties an

opportunity to argue for an appropriate sentence, considered the 18 U.S.C. § 3553(a)

(2018) factors, selected a sentence based on clearly erroneous facts, and sufficiently

explained the selected sentence. Id. at 49-51. “When rendering a sentence, the district

court must make an individualized assessment based on the facts presented,” United

States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal quotation marks and emphasis

omitted), and “must adequately explain the chosen sentence to allow for meaningful

appellate review and to promote the perception of fair sentencing.” Gall, 552 U.S. at 50.

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If there is no significant procedural error, we review the sentence for substantive

reasonableness, “tak[ing] into account the totality of the circumstances.” Id. at 51.

       With regard to USSG § 5K2.21, p.s., Thorpe contends that the district court was

required to “reference the Guidelines in determining the scope and breath of the upward

departure.” USSG § 5K2.21 provides that:

       [a] court may depart upward to reflect the actual seriousness of the offense
       based on conduct (1) underlying a charge dismissed as part of a plea
       agreement in the case, or underlying a potential charge not pursued in the
       case as part of a plea agreement or for any other reason; and (2) that did not
       enter into the determination of the applicable guideline range.

USSG § 5K2.21, p.s. Thorpe does not challenge the district court’s determination that the

charges dismissed or not pursued did not enter into the determination of the applicable

Guidelines range. Instead, Thorpe contends that the district court was required to tie the

extent of the departure more closely to the Guidelines. He also points out that, even had

he been convicted after a jury trial of every charge in the indictment, he would not have

faced a 360 to Life Guidelines range.

       The “incremental approach” requested by Thorpe is required when departing under

USSG § 4A1.3, based on a finding that that a defendant’s criminal history category

underrepresents the extent and nature of his criminal record. Specifically, a court should

“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. Dalton, 477 F.3d 195, 199 (4th Cir. 2007). However, neither

the explicit language of the Guidelines nor this court requires such an approach when

departing under § 5K2.21.

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       Instead, the district court must “‘set forth enough to satisfy [us] that [it] . . .

considered the parties' arguments and ha[d] a reasoned basis for exercising [its] own legal

decisionmaking authority’” to impose the departure sentence.             United States v.

Diosdado-Star, 630 F.3d 359, 364 (4th Cir. 2011) (quoting Rita v. United States, 551 U.S.

338, 356 (2007)). Here, the district court's detailed oral explanation demonstrates that it

accorded Thorpe a thoroughly individualized assessment and adequately explained the

reason for departure.

       Thus, the district court’s decision to depart upward by four offense levels based

upon uncharged conduct, including forcible rape of a child, was reasonable.       Thorpe’s

uncharged conduct in this case was horrific, and his victims were particularly vulnerable

and chosen for that reason. In light of this conduct, which Thorpe does not challenge, the

district court was within its discretion to apply the upward departure under § 5K2.21, p.s.

       Moreover, even if the district court committed procedural error, we find that any

error would be harmless. The district court explicitly stated that, if any of its Guidelines

calculations were incorrect, it still would impose the statutory maximum 480-month

sentence as a variance sentence. We have held that, even where a district court errs in its

departure analysis, the same variance sentence may still be reasonable if justified by the

§ 3553(a) factors. United States v. Grubbs, 585 F.3d 793, 804 (4th Cir. 2009); see also

United States v. Hargrove, 701 F.3d 156, 161-63 (4th Cir. 2012) (discussing harmless error

inquiry). Therefore, although the district court did not commit procedural error, even if it

had, that error would be harmless because the district court expressed its intent to vary

based upon the § 3553(a) factors.

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       However, Thorpe contends that his variance sentence is substantively unreasonable

because the district court did not give sufficient weight to his arguments in mitigation and

did not recognize that his Guidelines range accounted for much of the behavior the court

found disturbing. To the contrary, the record of the sentencing hearing indicates that the

district court engaged all of Thorpe’s arguments and found that his mental illness and

difficult upbringing did not excuse his criminal behavior. Moreover, the court found that

Thorpe’s conduct was “breathtaking” in its “evil” nature. The court noted a “tremendous

need to protect society” from Thorpe. The court concluded that if “there ever is a case for

a statutory maximum” sentence, Thorpe’s case was “that case.”

       The district court stated that it had reviewed all Thorpe’s arguments and recited the

§ 3553(a) factors. The court framed its reasons for Thorpe’s sentence around the nature

and circumstances of the offense and Thorpe’s history and characteristics. Based on

Thorpe’s “horrific” conduct, the district court determined that the statutory maximum

sentence was necessary to incapacitate, deter, and provide just punishment. Based on this

analysis, we find that Thorpe’s sentence is substantively reasonable.

       Accordingly, we affirm Thorpe’s sentence.        We dispense with oral argument

because the facts and legal contentions were adequately presented in the materials before

this court and argument would not aid the decisional process.



                                                                               AFFIRMED




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