                                     PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                      No. 16-4777


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

DARRYL EUGENE MILLS,

                    Defendant - Appellant.


Appeal from the United States District Court for the Western District of North Carolina,
at Charlotte. Robert J. Conrad, Jr., District Judge. (3:15-cr-00295-RJC-DCK-1)


Argued: January 31, 2019                                       Decided: March 5, 2019


Before WILKINSON, NIEMEYER, and KING, Circuit Judges.


Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge
Wilkinson and Judge King joined.


ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant. Amy Elizabeth Ray,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for
Appellee. ON BRIEF: Anthony Martinez, Federal Public Defender, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina,
for Appellant. R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
NIEMEYER, Circuit Judge:

       After Darryl Eugene Mills pleaded guilty to one count of possession of a firearm

by a felon, in violation of 18 U.S.C. § 922(g)(1), the district court sentenced him to 70

months’ imprisonment. That sentence was at the low end of the 70 to 87 month advisory

range that the district court found was applicable under the Sentencing Guidelines, which

was based in part on the district court’s conclusion that Mills’s prior North Carolina

conviction for assault with a deadly weapon inflicting serious injury was a conviction for

a “crime of violence.” In response to Mills’s argument that his prior North Carolina

conviction was not for a crime of violence as defined in the Sentencing Guidelines and

therefore that the sentencing range should have been 37 to 46 months’ imprisonment, the

district court stated that even if it did not treat the prior conviction as a qualifying

predicate, it would have imposed the same 70-month sentence as an upward variance

sentence because it believed that 70 months was “necessary and sufficient but not greater

than necessary . . . to accomplish the [18 U.S.C. §] 3553(a) factors,” based on the reasons

that the court had already explained to Mills.

       On appeal, Mills again argues that his prior North Carolina conviction did not

qualify as a conviction for a crime of violence and that the district court erred in so

concluding.    While the reasons Mills gives are not without persuasive force, we

nonetheless conclude that any error that the district court might have committed in

treating Mills’s prior North Carolina conviction as a crime-of-violence predicate was

harmless because the court would have imposed the same 70-month sentence regardless

of how it resolved the disputed Guidelines issue and the 70-month sentence would, in the

                                             2
circumstances, have been reasonable. See, e.g., United States v. Gomez-Jimenez, 750

F.3d 370, 382–86 (4th Cir. 2014). Accordingly, we affirm.


                                             I

       On the morning of September 11, 2015, police officers, using their vehicles,

blocked Mills’s vehicle, which was at a gas station in Charlotte, North Carolina, with the

purpose of arresting the passenger in Mills’s vehicle on an outstanding warrant. Mills

attempted to bypass the blockade by driving in reverse, but in doing so, he hit an

unmarked police vehicle behind him. He then “spun his tires in an attempt to evade

apprehension.” But after he realized that his vehicle was boxed in, he complied with the

officers’ commands.     As the officers approached Mills’s vehicle, they observed a

handgun in Mills’s lap, which was loaded. Subsequently, Mills pleaded guilty to one

count of possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1).

       The presentence report prepared for Mills’s sentencing concluded that under

U.S.S.G. § 2K2.1(a)(4)(A), the base offense level for his conviction was 20 because Mills

had a prior felony conviction for a “crime of violence,” namely, a 2006 North Carolina

conviction for committing assault with a deadly weapon inflicting serious injury, in

violation of N.C. Gen. Stat. § 14-32(b). The report also added two offense levels because

the firearm was stolen and two offense levels because of Mills’s reckless endangerment

when fleeing police, but it deducted three offense levels for acceptance of responsibility,

for a total offense level of 21. When Mills’s offense level of 21 was combined with his

criminal history category of V, the recommended sentence was 70 to 87 months’


                                             3
imprisonment. If, however, Mills’s prior North Carolina assault conviction had not been

designated as a conviction for a “crime of violence,” his offense level would have

dropped six levels, and his advisory sentencing range would have been 37 to 46 months’

imprisonment.

       Mills filed an objection to the presentence report’s characterization of his North

Carolina assault conviction as one for a “crime of violence,” arguing that because North

Carolina assault can be committed with a mens rea of “culpable negligence,” it did not

require the type of purposeful conduct necessary to satisfy the “force clause” used to

define “crime of violence” in U.S.S.G. § 4B1.2(a)(1) (defining “crime of violence” to

include any felony offense that “has as an element the use, attempted use, or threatened

use of physical force against the person of another”).

       In its response, the government conceded that “not every [North Carolina assault

with a deadly weapon inflicting serious injury] conviction [was] a crime of violence.”

But it argued that the North Carolina assault offense was “divisible” and therefore that

application of the “modified categorical approach” allowed the court to consider the

indictment on which Mills was charged to determine whether his prior conviction was for

a crime of violence. It explained that North Carolina law establishes that “[a] defendant

. . . must be charged with culpable negligence to be convicted on a culpable negligence

standard,” citing State v. Stevens, 745 S.E.2d 64, 69 (N.C. Ct. App. 2013), and State v.

Hines, 600 S.E.2d 891, 896 (N.C. Ct. App. 2004). And, the government argued, because

the indictment underlying Mills’s prior conviction, which the government provided to the

court, showed that Mills was charged and convicted under “an ‘actual intent’ theory

                                             4
rather than a negligence theory,” his conviction qualified as a “crime of violence” under

the force clause of § 4B1.2(a)(1). That indictment showed that Mills was charged in

2005 with “unlawfully, willfully and feloniously us[ing] a gun, a deadly weapon, to

assault and inflict serious injury upon” another.

       After the parties filed their responses to the presentence report, the Sentencing

Commission revised the definition of “crime of violence” in § 4B1.2(a), leaving the

“force clause” unchanged but removing the so-called “residual clause” and adding in its

place a number of enumerated offenses, including “aggravated assault.” See U.S.S.G.

Supp. to App. C, Amend. 798 (eff. Aug. 1, 2016).

       The parties thereafter filed additional papers to argue further whether Mills’s

conviction for assault with a deadly weapon inflicting serious injury qualified as a crime-

of-violence conviction. Mills argued that the crime was not, in fact, divisible, as the

government argued, “because North Carolina law does not require the jury to

unanimously agree that a defendant committed the offense with a particular mens rea.”

He also argued that United States v. Barcenas-Yanez, 826 F.3d 752 (4th Cir. 2016),

established that the generic version of “the now-enumerated offense of ‘aggravated

assault’” in revised § 4B1.2(a) also requires a mens rea greater than “recklessness.” The

government continued to maintain that North Carolina assault with a deadly weapon

inflicting serious injury was a divisible offense and that the relevant indictment, which

could be considered under the modified categorical approach, showed that the version of

the crime for which Mills had been convicted was a crime of violence because it had “as

an element the use, attempted use, or threatened use of physical force against the person

                                             5
of another,” U.S.S.G. § 4B1.2(a)(1), and now also because it amounted to generic

“aggravated assault,” id. § 4B1.2(a)(2).

       At sentencing, the district court agreed with the government. Although the court

acknowledged the difficulty of determining when the modified categorical approach

could be used, it concluded that the North Carolina offense of assault with a deadly

weapon inflicting serious injury was divisible by mens rea and that the indictment

showed that Mills was charged and convicted with a version of the crime that had a

sufficient mens rea to qualify as a “crime of violence” under the “force clause” in

§ 4B1.2(a)(1). Accordingly, the court concluded that the presentence report had correctly

calculated Mills’s advisory sentencing range as 70 to 87 months’ imprisonment.

       In light of the court’s conclusion, counsel for Mills urged the court to impose a

sentence at the bottom of the recommended range — specifically, 70 months’

imprisonment — arguing (1) that Mills’s offense level took into account “all the aspects

of his offense, including his possession of a stolen gun” and that his criminal history was

similarly adequately represented by his criminal history category of V; (2) that the

offense conduct was “unusual in certain respects” in that Mills was not “the target of

some massive investigation” but was instead found to be in possession of a firearm while

police were attempting to arrest someone else; (3) that the absence of Mills’s incarcerated

father, while not an excuse for Mills’s conduct, had “contributed to him going down the

wrong road in his life”; (4) that Mills’s desire not “to repeat [that] cycle,” but instead to

be present for his own sons, would deter him from future illegal conduct; and (5) that his

family members’ presence at the hearing “show[ed] that he ha[d] family support, which

                                             6
would help protect the public under [18 U.S.C. §] 3553(a).” The government agreed that

a sentence at the “low end” of the advisory sentencing range, as the court had determined

it, would be appropriate.

       The court then sentenced Mills to 70 months’ imprisonment after stating that it

had “consulted the advisory Guidelines [and] considered the arguments of the attorneys.”

It explained further that a 70-month sentence accounted for “the serious nature of

[Mills’s] offense” — namely, Mills’s “possession of a stolen firearm in [his] lap” while

he was “attempt[ing] to evade police effecting service of [a] warrant” — and also

accounted for Mills’s “history and characteristics,” including “his many convictions for

assault, a couple for resisting, [a] previous conviction for evading, [and a] number of

convictions involving improper possession or acquisition of firearms,” all of which

“indicate[d] to the Court that a lengthy sentence [was] necessary to deter and to protect

the public from further crimes” by Mills. The court then also observed that “[t]he 70-

month sentence is 24 months above the high end of the range” that the Guidelines would

have advised had the court sustained Mills’s objection to the crime-of-violence

adjustment. But it stated that 70 months “is the sentence that [it] would have imposed

even had the other range been the applicable one” (emphasis added), because it had

concluded that “70 months is a necessary and sufficient but not greater than necessary

sentence to accomplish the 3553(a) factors.”

       From the district court’s judgment, dated November 15, 2016, Mills filed this

appeal.



                                           7
                                             II

       Mills contends that his prior conviction for North Carolina assault with a deadly

weapon inflicting serious injury, in violation of N.C. Gen. Stat. § 14-32(b), did not

constitute a conviction for a “crime of violence,” as defined in U.S.S.G. § 4B1.2(a) and

applied in § 2K2.1(a)(4)(A), and therefore that the sentencing range for his current

conviction should have been 37 to 46 months’ imprisonment, rather than the 70 to 87

month range calculated by the district court. He argues that his prior offense did not have

“as an element the use, attempted use, or threatened use of physical force against the

person of another,” U.S.S.G. § 4B1.2(a)(1), and also that it did not constitute the

enumerated offense of “aggravated assault,” as generally defined, id. § 4B1.2(a)(2).

       Focusing categorically on the mens rea of his prior conviction, Mills notes that in

North Carolina, a defendant “may be convicted of [assault with a deadly weapon

inflicting serious injury] provided there is either an actual intent to inflict injury or

culpable or criminal negligence from which such intent may be implied.” State v. Jones,

538 S.E.2d 917, 923 (N.C. 2000) (emphasis added); see also id. (explaining that culpable

negligence exists where the unintentional violation of a safety statute “is accompanied by

recklessness of probable consequences of a dangerous nature, when tested by the rule of

reasonable foreseeability, amounting altogether to a thoughtless disregard of

consequences or of a heedless indifference to the safety of others” (emphasis added)

(internal quotation marks, brackets, and citation omitted)). And consistent with this mens

rea, as he points out, it is also well settled in North Carolina “that an automobile can be a

deadly weapon if it is driven in a reckless or dangerous manner,” such that a driver who

                                             8
“proximately caus[es] serious injury to another” by “operating his automobile . . . in a

culpably or criminally negligent manner” has committed the crime of assault with a

deadly weapon inflicting serious injury. See id. at 922–23. Building on this aspect of

North Carolina law, Mills maintains that the assault crime defined by § 14-32(b) is a

singular, indivisible offense and that because it may be committed with a mens rea of

“culpable negligence,” it neither requires the defendant to use (or attempt or threaten to

use) physical force against the person of another nor constitutes the enumerated offense

of “aggravated assault,” as we have defined that term. See Barcenas-Yanez, 826 F.3d at

756 (recognizing that “inclusion of a mere reckless state of mind renders [a crime]

broader than” “the ‘generic’ aggravated assault offense”).

       The government, amplifying the arguments it made to the district court, contends

(1) that assault with a deadly weapon inflicting serious injury categorically qualifies as a

crime of violence under the force clause in § 4B1.2(a)(1); (2) that, alternatively, the

North Carolina crime is “divisible as to mens rea” and that the indictment related to

Mills’s offense establishes that he was charged and convicted of the version of the

offense that qualifies as a crime of violence because it required proof of actual intent,

rather than culpable negligence; and (3) that any error in calculating Mills’s advisory

sentencing range was, in any event, harmless.

       At the outset, we express some doubts about whether the district court correctly

classified Mills’s North Carolina assault conviction under § 14-32(b) as one for a crime

of violence under the current version of the Sentencing Guidelines. Compare Leocal v.

Ashcroft, 543 U.S. 1, 9 (2004) (holding that the Florida felony offense of DUI causing

                                             9
serious bodily injury did not qualify as a crime of violence under § 16(a)’s force clause

because “[t]he key phrase in § 16(a) — the ‘use . . . of physical force against the person

or property of another’ — most naturally suggests a higher degree of intent than negligent

or merely accidental conduct”), with Jones, 538 S.E.2d at 923 (recognizing that a driver

who commits the crime of “operating [a] motor vehicle[] while under the influence of

impairing substances . . . [engages in] culpable negligence as a matter of law” and that if

such an impaired driver “operates [his] motor vehicle in a manner such that it constitutes

a deadly weapon, thereby proximately causing serious injury to another, [he] may be

convicted of [assault with a deadly weapon inflicting serious injury]”); compare also

Mathis v. United States, 136 S. Ct. 2243, 2249, 2253 (2016) (holding that the modified

categorical approach may only be used when the criminal provision under which the

defendant was convicted includes “alternative elements” defining distinct crimes, as

opposed to “various factual means of committing a single element” upon which a jury

need not unanimously agree), with Hines, 600 S.E.2d at 895–96 (holding that the trial

court improperly instructed the jury that an aggravated assault offense could be

committed with either actual intent or culpable negligence when the indictment did not

allege a culpable negligence theory because “the variance between the indictment and the

jury instruction substantially affected [the] defendant’s ability to prepare a defense,” but

nowhere suggesting that if a culpable negligence theory had been properly charged, the

jury would have been required to agree unanimously as to which type of mens rea the

defendant possessed), and Stevens, 745 S.E.2d at 68–69 (same).



                                            10
       Nonetheless, in this case, we need not, and we do not, resolve these issues, as we

are confident that even under Mills’s position that the district court erred in treating his

prior assault conviction as a conviction for a crime of violence, the purported error was

harmless.

       It is well established that we will not vacate a sentence if we determine that the

district court’s improper calculation of the Guidelines advisory sentencing range was

harmless. See Fed. R. Crim. P. 52(a) (providing that “[a]ny error, defect, irregularity, or

variance that does not affect substantial rights must be disregarded”); see also, e.g.,

United States v. Savillon-Matute, 636 F.3d 119 (4th Cir. 2011). Of course, “[w]hen a

defendant is sentenced under an incorrect Guidelines range . . . the error itself can, and

most often will, be sufficient to show a reasonable probability of a different outcome

absent the error.” Molina-Martinez v. United States, 136 S. Ct. 1338, 1345 (2016). This

conclusion follows from “[t]he Guidelines’ central role in sentencing” — including the

requirement that the sentencing court “begin [its] analysis with the Guidelines and remain

cognizant of them throughout the sentencing process.” Id. (internal quotation marks and

citation omitted). But, as the Molina-Martinez Court also recognized, “[t]here may be

instances when, despite application of an erroneous Guidelines range, a reasonable

probability of prejudice does not exist. . . . The record in a case may show, for example,

that the district court thought the sentence it chose was appropriate irrespective of the

Guidelines range.” Id. at 1346 (emphasis added).

       Consistent with Molina-Martinez, we have recognized that a Guidelines error is

harmless and does not warrant vacating the defendant’s sentence if the record shows that

                                            11
“(1) ‘the district court would have reached the same result even if it had decided the

[G]uidelines issue the other way,’ and (2) ‘the sentence would be reasonable even if the

[G]uidelines issue had been decided in the defendant’s favor.’” Gomez-Jimenez, 750

F.3d at 382 (quoting Savillon-Matute, 636 F.3d at 123). We employ this inquiry out of

recognition that “it would make no sense to set aside a reasonable sentence and send the

case back to the district court since it has already told us that it would impose exactly the

same sentence, a sentence we would be compelled to affirm.” United States v. Hargrove,

701 F.3d 156, 162 (4th Cir. 2012) (alterations and citation omitted).

       Applying this test here, as to the first prong, the district court made it abundantly

clear that it would have imposed the same 70-month sentence even had it sustained

Mills’s objection to treating his North Carolina § 14-32(b) assault conviction as one for a

crime of violence. The court specifically recognized that had it agreed with Mills on that

issue, the 70-month sentence it was imposing would have been “24 months above the

high end of the range” that such a ruling would have produced. But even while it

recognized the degree of the variance, the court expressly stated that 70 months’

imprisonment “is the sentence that the Court would have imposed even had the other

range been the applicable one” (emphasis added) because it had concluded that “70

months [was] a necessary and sufficient but not greater than necessary sentence to

accomplish the § 3553(a) factors.”       Under our precedents, this expression of the

sentencing court’s views suffices to establish that the court would have imposed the same

sentence even had it resolved the challenged Guidelines calculation in the defendant’s

favor. See, e.g., Gomez-Jimenez, 750 F.3d at 382–83.

                                             12
       “We therefore proceed to the second [prong] of the inquiry, whether the district

court’s sentence[] [was] substantively reasonable.” Gomez-Jimenez, 750 F.3d at 383. In

reviewing the 70-month sentence for substantive reasonableness, we must “examine[] the

totality of the circumstances” — including the extent of the variance from the assumed

applicable advisory range of 37 to 46 months’ imprisonment — “to see whether the

sentencing court abused its discretion in concluding that the sentence it chose satisfied

the standards set forth in § 3553(a).” Id. But in doing so, we must also “give due

deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the

extent of the variance.” Gall v. United States, 552 U.S. 38, 51 (2007).

       Applying these principles to the circumstances here, we conclude that the district

court’s individualized application of the § 3553(a) sentencing factors supports its

conclusion that, even if the applicable advisory range was 37 to 46 months’

imprisonment, a variance to a 70-month sentence was necessary to satisfy the basic aims

of sentencing. While the court’s discussion of the § 3553(a) factors was not extensive, it

was sufficient, succinctly emphasizing the particularly dangerous nature of the

circumstances involved in Mills’s particular § 922(g) offense, including the fact that

Mills was found to have “a stolen firearm in [his] lap at the time authorities were

attempting to serve a warrant on a passenger” and that he spun his “tires in an apparent

attempt to evade police effecting service of that warrant.” The court also emphasized

Mills’s significant criminal history, including “his many convictions for assault, a couple

for resisting, [a] previous conviction for evading, [and a] number of convictions

involving improper possession or acquisition of firearms.”                 Based on these

                                             13
considerations, the court reasonably concluded that the application of the § 3553(a)

factors indicated that “a lengthy sentence” — specifically, a sentence of 70 months’

imprisonment — was “necessary to deter and to protect the public from further crimes

[by] Mr. Mills.”

       Moreover, given that the government had provided the court with reliable

information about Mills’s prior North Carolina conviction, the district court’s decision to

impose an alternative variance sentence of 70 months’ imprisonment made good sense.

Even if Mills’s prior conviction for North Carolina assault with a deadly weapon

inflicting serious injury should not have been identified as a conviction for a crime of

violence in calculating his base offense level under the Sentencing Guidelines, the district

court was nonetheless provided with the state court indictment showing that Mills’s prior

offense conduct involved “willfully . . . us[ing] a gun . . . to assault and inflict serious

injury” on another human being. The court was thus entitled to take that conduct into

account when determining what sentence was “sufficient, but not greater than necessary,

to comply with the” basic aims of sentencing, 18 U.S.C. § 3553(a), and it is no surprise

that, having done so, the court concluded that it was appropriate to impose an alternative

variance sentence at the bottom of the advisory range that would have applied had the

conviction for that conduct counted as one for a crime of violence. See United States v.

Doctor, 842 F.3d 306, 317–18 (4th Cir. 2016) (Wilkinson, J., concurring) (observing that

“as the district court sets about [its] discretionary exercise, it has various tools to impose

a stricter sentence if it believes that the categorical approach is ignoring a violent criminal

history or disserving the general aims of sentencing” and that such tools, including the

                                              14
discretion to impose a variance sentence, “may allow a trial judge to reach an appropriate

sentence by considering the very facts the categorical approach proscribes”).

       While Mills does not seriously challenge the substantive reasonableness of his 70-

month sentence, he does challenge its procedural reasonableness. Specifically, he argues

that “the district court failed to address [his] mitigating arguments, which would have

supported a within-[G]uidelines sentence under the properly calculated [G]uidelines

range of 37 to 46 months.” In making this argument, Mills rightly observes that “[t]his

Court has not specifically addressed whether an alternative sentence is subject to the

same procedural requirements as a regular sentence.” But he fails to recognize that we

have consistently framed our reasonableness inquiry in this type of harmless error review

as being focused on substantive reasonableness. See, e.g., Gomez-Jimenez, 750 F.3d at

383 (describing the “second [prong] of the [harmless error] inquiry [as] whether the

district court’s sentences are substantively reasonable” (emphasis added)); Hargrove, 701

F.3d at 163 (noting that because the district court expressly stated that it would have

imposed the same sentence regardless of its determination of the challenged Guideline

issue “[t]he dispositive question . . . is whether the upward variance . . . is substantively

reasonable under the facts of this case” (emphasis added)).

                                      *      *       *

       For the reasons given, we affirm Mills’s sentence of 70 months’ imprisonment.

                                                                                AFFIRMED




                                             15
