                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4438


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TREMAYNE A. LYNCH, a/k/a Paco,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   James C. Dever III,
Chief District Judge. (5:13-cr-00255-D-1)


Submitted:   January 30, 2015             Decided:   February 10, 2015


Before AGEE and HARRIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Jeffrey W. Gillette, GILLETTE LAW FIRM, PLLC, Franklin, North
Carolina, for Appellant.      Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Phillip A. Rubin, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Tremayne      A.    Lynch    appeals     his     sentence      following       a

guilty plea to conspiracy to possess cocaine base with intent to

distribute, in violation of 21 U.S.C. § 841(a)(1) (2012) (Count

One), and discharging a firearm during and in relation to a drug

trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(iii)

(2012) (Count Two).               The district court applied an eight-level

upward       departure        and        sentenced          Lynch     to     450      months’

imprisonment, 240 months on Count One and 210 months on Count

Two,    to   be   served     consecutively.             Lynch       challenges      the    drug

weights      applied    by     the      district    court      on    Count    One    and    the

upward departure on Count Two.                  We affirm.

               The Government argues that Lynch’s challenge to Count

One is barred by language in his plea agreement waiving his

right to appeal a within-Guidelines sentence.                          Lynch argues that

because his overall sentence exceeded the Guidelines range, his

waiver does not bar an appeal of any part of that sentence,

including his sentence on Count One.                           “[W]e will enforce an

appellate      waiver     provision        against      a    defendant       only    if    that

provision is clearly and unambiguously applicable to the issues

raised by the defendant on appeal.”                           United States v. Yooho

Weon,    722    F.3d    583,      588    (4th    Cir.   2013)       (internal       quotation

marks     omitted)      (reasoning          that     “traditional          principles       of

contract law” require plea agreements to be construed against

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Government).           The parties dispute whether the plea agreement’s

language allowing Lynch to appeal “from a sentence in excess of

the applicable advisory Guideline range” allows him to appeal

Count      One    where      his     total      sentence       exceeded    the   Guidelines

range, but his sentence on Count One did not.                             The crux of this

dispute is whether the term “sentence” in the phrase “sentence

in   excess       of    the     Guideline        range”    refers    to     Lynch’s    total

sentence         or    to   his    sentences         on   each    individual     count      of

conviction.            Because this term is ambiguous, we construe the

appellate waiver narrowly to allow Lynch’s challenge to Count

One.

                 Lynch argues that the district court erred by relying

on   a   confidential           informant       in    determining     the    drug   weights

attributable          to    Lynch.        “We   review     a    district    court’s    legal

conclusions at sentencing de novo and its factual findings for

clear error.”           United States v. McDowell, 745 F.3d 115, 120 (4th

Cir. 2014), cert. denied, __ S. Ct. __, 2015 WL 132957 (U.S.

Jan. 12, 2015) (No. 13-10640).                       In resolving a factual dispute,

a “sentencing court may give weight to any relevant information

before it, including uncorroborated hearsay, provided that the

information has sufficient indicia of reliability to support its

accuracy.”            United States v. Gomez-Jimenez, 750 F.3d 370, 386

(4th Cir.) (internal quotation marks omitted), cert. denied, 135

S.   Ct.    305       (2014).        We   “afford      considerable        deference   to    a

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district       court’s    determinations        regarding         the        reliability       of

information in a PSR,” and will not disturb such determinations

unless we are “left with the definite and firm conviction that a

mistake     has    been     committed.”          McDowell,             745    F.3d     at     120

(internal       quotation    marks   omitted).              Lynch       argues       that     the

district court could not reasonably rely on the confidential

informant because he misidentified Lynch’s gang affiliation and

stated that Lynch engaged in multiple drug transactions a day at

a supplier’s house even though Lynch was employed during this

time     period    and    later    needed       another          person       to     direct     a

coconspirator      who    was   driving     him       to    that       supplier’s         house.

These discrepancies are insufficient to show that the district

court clearly erred by trusting the informant, who, according to

testimony       presented     at   sentencing,             had    a     long       record      of

providing reliable information.                  Therefore, we affirm Lynch’s

sentence on Count One.

               Lynch also challenges the district court application

of upward departures on Count Two.                We have repeatedly held that

such errors are harmless where the district court states that it

would have imposed the same sentence as a variance and such a

variance would have been substantively reasonable.                             E.g., Gomez-

Jimenez, 750 F.3d at 386 (collecting cases); see also United

States    v.    Rivera–Santana,      668       F.3d    95,       103    (4th       Cir.     2012)

(applying this rule where length of hypothetical variance was

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ninety months).        In this case, the district court made such a

statement, and we find that it could have reasonably imposed its

sentence on Count Two as a variance based on its recognition of

the wanton cruelty of Lynch’s conduct.             See United States v.

Diosdado-Star, 630 F.3d 359, 364 (4th Cir. 2011) (holding that

district court need only provide reasoned basis for variance).

Accordingly, we hold that any error in Lynch’s sentence on Count

Two was harmless.

            Accordingly, we affirm the judgment of the district

court.     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




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