                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 16-4387


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

DEONTAE J. HARGRAVE,

                    Defendant - Appellant.



Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. Robert E. Payne, Senior District Judge. (3:15-cr-00037-REP-1)


Submitted: April 22, 2020                                         Decided: May 13, 2020


Before MOTZ and FLOYD, Circuit Judges, and SHEDD, Senior Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.


Lawrence H. Woodward, Jr., RULOFF, SWAIN, HADDAD, MORECOCK, TALBERT
& WOODWARD, P.C., Virginia Beach, Virginia, for Appellant. G. Zachary Terwilliger,
United States Attorney, Alexandria, Virginia, S. David Schiller, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Deontae J. Hargrave pled guilty, pursuant to a written plea agreement, to robbery

affecting interstate commerce (“Hobbs Act robbery”), in violation of 18 U.S.C. § 1951(a)

(2018) (Count 1), and using, carrying, possessing, brandishing, and discharging a firearm

in relation to a crime of violence, to wit: the Hobbs Act robbery charged in Count 1, in

violation of 18 U.S.C. § 924(c)(1) (2018) (Count 2). Hargrave’s counsel filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), finding no meritorious grounds for

appeal. We identified one potentially meritorious issue and ordered the parties to submit

supplemental briefs on that issue: the reasonableness of the sentence on Count 2. 1 For the

reasons that follow, we conclude that the sentence on Count 2 is unreasonable. 2

       “As a general matter, in reviewing any sentence whether inside, just outside, or

significantly outside the Guidelines range, we review for an abuse of discretion.” United

States v. Bolton, 858 F.3d 905, 911 (4th Cir. 2017) (internal quotation marks and citations

omitted). First, we verify “that the district court committed no significant procedural error,

such as failing to calculate (or improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) [(2018)] factors,

selecting a sentence based on clearly erroneous facts, or failing to adequately explain the




       1
           Hargrave was appointed new counsel for supplemental briefing.
       2
         In its brief filed in accordance with the supplemental briefing order, the
Government seeks, for the first time, to invoke the appellate waiver provision in Hargrave’s
plea agreement. We decline to enforce the appeal waiver at this late juncture in the
proceedings.

                                              2
chosen sentence—including an explanation for any deviation from the Guidelines range.”

Gall v. United States, 552 U.S. 38, 51 (2007). If the sentence is procedurally reasonable,

we consider its substantive reasonableness, “tak[ing] into account the totality of the

circumstances, including the extent of any variance from the Guidelines range.” Id.

       When rendering a sentence, the district court must place on the record an

explanation based on the particular facts of the case. United States v. Carter, 564 F.3d 325,

328, 330 (4th Cir. 2009). “A district court’s explanation of its sentence need not be lengthy,

but the court must offer some individualized assessment justifying the sentence imposed

and rejection of arguments for a higher or lower sentence based on § 3553.” United States

v. Lymas, 781 F.3d 106, 113 (4th Cir. 2015) (brackets and internal quotation marks

omitted). It must also be sufficient “for this Court to engage in meaningful appellate

review.” United States v. Ross, 912 F.3d 740, 745 (4th Cir.) (citation and internal quotation

marks omitted), cert. denied, 140 S. Ct. 206 (2019).

       Under U.S. Sentencing Guidelines Manual § 2K2.4(b) (2014), for a non-career

offender such as Hargrave, “the guideline sentence [for a § 924(c) offense] is the minimum

term of imprisonment required by statute.” Hargrave’s statutory mandatory minimum

sentence on Count 2 was 10 years’ imprisonment because he discharged a firearm during

a crime of violence. 18 U.S.C. § 924(c)(1)(A)(iii). However, the district court imposed a

180-month term of imprisonment on Count 2, 60 months above the statutory minimum

sentence.

       Hargrave first argues that his sentence on Count 2 was procedurally unreasonable

in light of Rule 32(h), Fed. R. Crim. P., because the court failed to provide notice of its

                                              3
intention to impose a variant sentence or an upward departure. Rule 32(h) requires the

sentencing court to give advance notice of its intent to depart from the Guidelines range on

a ground not identified in the presentence report or the parties’ prehearing submissions. To

the extent that Hargrave received a variant sentence on Count 2, the Supreme Court has

squarely held that Rule 32(h) “does not apply to 18 U.S.C. § 3553 variances.” Irizarry v.

United States, 553 U.S. 708, 714 (2008). In any event, the Government requested a 15-

year sentence on Count 2 in its supplemental sentencing memorandum and the discussion

at the sentencing hearing focused exclusively on information in the PSR and the parties’

filings. We conclude that Hargrave’s argument is unpersuasive.

       Next, Hargrave contends that his sentence is unreasonable because the court failed

to articulate a reason for imposing a sentence five years higher than the Guideline sentence.

The district court offered little explanation for imposing a term 50% greater than the

Guideline sentence for Count 2. The court referred to this sentence as “the mandatory part

of the sentence” and stated that it was reasonable under the circumstances. The court

referenced the § 3553(a) factors, stating that the sentence was intended to deter Hargrave,

to promote respect for the law, and to protect the public. But the court did not specify

whether the sentence was intended as an upward departure or as a variance and the

Statement of Reasons indicated that the court imposed the mandatory minimum sentence

and did not impose a sentence outside of the Guidelines range. For these reasons, we

conclude that the district court failed to adequately explain the sentence on Count 2 and

that the sentence on Count 2 is unreasonable.



                                             4
       In accordance with Anders, we have reviewed the entire record in this case and have

found no other meritorious grounds for appeal.           We therefore affirm Hargrave’s

convictions on Counts 1 and 2 and his sentence on Count 1, but we vacate his sentence on

Count 2 and remand for further proceedings. This court requires that counsel inform

Hargrave, in writing, of the right to petition the Supreme Court of the United States for

further review. If Hargrave requests that a petition be filed, but counsel believes that such

a petition would be frivolous, then counsel may move in this court for leave to withdraw

from representation. Counsel’s motion must state that a copy thereof was served on

Hargrave. 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 IN PART, VACATED IN PART, AND REMANDED




                                             5
