                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-4532


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ARTHUR JERMAIN SIMMONS, a/k/a Melvin Davis, a/k/a Arthur
Germain Simmons, a/k/a Arthur Germaine Simmons, a/k/a Arther
Simmons, a/k/a Arthur German Simmons, a/k/a Arthur Jermaine
Simmons,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston.    Patrick Michael Duffy, Senior
District Judge. (2:08-cr-00688-PMD-1)


Submitted:   March 13, 2012                 Decided:   March 29, 2012


Before NIEMEYER, MOTZ, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Christopher R. Antley, DEVLIN & PARKINSON, P.A., Greenville,
South Carolina, for Appellant.   Sean Kittrell, Assistant United
States Attorney, Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                 Arthur Jermain Simmons appeals the 180-month aggregate

sentence imposed on him at resentencing after he pled guilty to

armed      bank      robbery      (“Count     Two”),   in   violation     of    18   U.S.C.

§ 2113(a), (d) (2006), using and carrying a firearm during and

in relation to a crime of violence (“Count Three”), in violation

of 18 U.S.C. § 924(c) (2006), and possession of a firearm and

ammunition by a felon (“Count Four”), in violation of 18 U.S.C.

§ 922(g)(1) (2006).               Simmons’ counsel has filed a brief * pursuant

to Anders v. California, 386 U.S. 738 (1967), in which he states

that       he    has    divined     no   meritorious        grounds     for    appeal     but

requesting           that   we     review     three    potential      areas    of    error:

(1) whether it was improper to deny Simmons’ motion to withdraw

his guilty plea to Count Three; (2) whether the district court

failed          to     adequately      explain      its     selected     sentence;        and

(3) whether            Simmons’      sentence         is    both     procedurally         and

substantively unreasonable because the district court continued

to assess him as a career offender, notwithstanding this court’s

holding         to   the    contrary     in    Simmons’     previous     direct      appeal.

Having       reviewed       the    record,     we     affirm   the     judgment      of   the

district court.


       *
       Simmons was informed of his right to file a supplemental
brief but elected not to do so.



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            First, we conclude that the district court did not

abuse its discretion in denying Simmons’ motion to withdraw his

guilty plea to Count Three.             See United States v. Ubakanma, 215

F.3d 421, 424 (4th Cir. 2000) (stating standard of review).                             “A

defendant   has       no   absolute   right     to   withdraw      a     guilty     plea,”

United   States       v.   Bowman,    348   F.3d     408,   413    (4th      Cir.    2003)

(internal quotation marks omitted), but instead bears the burden

of showing a “fair and just reason” for withdrawing his plea.

Fed. R. Crim. P. 11(d)(2)(B); United States v. Battle, 499 F.3d

315, 319 (4th Cir. 2007).             See also United States v. Moore, 931

F.2d 245, 248 (4th Cir. 1991) (describing several factors that

should inform a district court’s determination whether to allow

a defendant to withdraw a guilty plea).

            Here,      although      Simmons    argues      that       he   is    legally

innocent of the offense charged in Count Three because the gun

remained in his van during the bank robbery, we cannot agree.

See 18 U.S.C. § 924(c)(1)(A) (criminalizing anyone who “uses,”

“carries,” or “possesses” a firearm “during and in relation to

any crime of violence”); Muscarello v. United States, 524 U.S.

125, 127 (1998) (someone who knowingly possesses and conveys

firearms    in    a    vehicle    “carries”      a    firearm      for      purposes   of

§ 924(c)); United States v. McCaskill, 676 F.2d 995, 1000 (4th

Cir. 1982) (noting that flight is a part of a robbery offense).

Accord United States v. Williams, 344 F.3d 365, 372-73 (3d Cir.

                                            3
2003)   (collecting        cases     and    upholding       a    § 924(c)       conviction

where the defendant bank robber carried the gun only in his car,

not into the bank); United States v. Adkins, 203 F. App’x 472,

473-74 (4th Cir. Oct. 23, 2006) (defendant used weapon “during”

a carjacking when firing shots while escaping).                           Because there

is no other reason to believe that Simmons’ plea was defective,

it was no abuse of discretion for the district court to deny

Simmons’ motion to withdraw it.

               As    for   Simmons’         sentence,           we     review     it     for

reasonableness,        applying       an    abuse     of        discretion      standard.

Gall v. United States, 552 U.S. 38, 51 (2007).                         Although counsel

suggests that Simmons’ sentence was not adequately explained by

the district court, see United States v. Carter, 564 F.3d 325,

330 (4th Cir. 2009), the district court’s explanation “need not

be elaborate or lengthy.”              United States v. Johnson, 587 F.3d

625,    639     (4th   Cir.    2009).           Nor   must       the     district      court

“robotically tick through § 3553(a)’s every subsection”; it must

only provide “some indication” that it considered the § 3553(a)

factors    with      respect    to    the     defendant         before     it   and    also

considered any nonfrivolous arguments raised by the parties at

sentencing.         United States v. Montes-Pineda, 445 F.3d 375, 380

(4th    Cir.    2006).        Our    review     of    the       record    in    this    case

convinces us that the district court’s explanation is sufficient

to allow for “‘meaningful appellate review,’” Carter, 564 F.3d

                                            4
at 330 (quoting Gall, 552 U.S. at 50), such that we need “not

guess at the district court’s rationale.”                                     Id. at 329.            We

therefore      decline        to       find    the       sentence       imposed      upon     Simmons

procedurally unreasonable in this regard.

               Moreover,          we     reject          Simmons’       suggestion         that     his

sentence       is    both     procedurally               and    substantively            unreasonable

because    the        district         court        enhanced         his    sentence       upon     its

conclusion that Simmons was a career recidivist, despite the

fact that Simmons was not technically a career offender under

the Guidelines.             When a district court imposes a sentence that

falls outside of the applicable Guidelines range, we consider

“whether the sentencing court acted reasonably both with respect

to its decision to impose such a sentence and with respect to

the extent of the divergence from the sentencing range.” United

States    v.     Hernandez–Villanueva,                   473     F.3d      118,    123     (4th    Cir.

2007).      In conducting this review, the appellate court “must

give due deference to the district court’s decision that the

§ 3553(a)       factors,        on      a     whole,       justify          the    extent     of    the

variance.”          Gall, 552 U.S. at 51.                      Thus, even if we could have

reasonably          reached     a      different          sentencing          result       than    that

arrived     at       by     the        district          court,       “this       fact     alone     is

‘insufficient          to     justify         reversal          of    the     district      court.’”

United    States       v.     Pauley,         511    F.3d       468,    474       (4th    Cir.     2007)

(quoting Gall, 552 U.S. at 51).

                                                     5
             Here, even if the district court failed to employ the

proper incremental analysis in determining an appropriate degree

of departure, see United States v. Dalton, 477 F.3d 195, 199

(4th Cir. 2007), any such procedural error is harmless where

“the upward variance based on the § 3553(a) factors justifie[s]

the sentence imposed.”            United States v. Rivera-Santana, 668

F.3d   95,    104   (4th   Cir.    2012).        Our    review   of   the   record

persuades us that the district court’s analysis of the § 3553(a)

factors as they applied to Simmons’ case is adequate to support

the upward variant sentence ultimately imposed.                  See id.; United

States v. Evans, 526 F.3d 155, 165 (4th Cir. 2008).                         We are

likewise      convinced    that     the       district     court’s    sentencing

determinations      were    otherwise         substantively      reasonable    and

should therefore remain undisturbed.                   See Evans, 526 F.3d at

160; see also United States v. Diosdado–Star, 630 F.3d 359, 367

(4th Cir.), cert. denied, 131 S. Ct. 2946 (2011).

             In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.      We therefore affirm the judgment of the district court.

This court requires that counsel inform Simmons, in writing, of

the right to petition the Supreme Court of the United States for

further review.       If Simmons 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

                                          6
representation.    Counsel’s motion must state that a copy thereof

was served on Simmons.

            We dispense with oral argument because the facts and

legal    contentions   are   adequately   presented    in   the    materials

before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                    AFFIRMED




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