                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 15-4047


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

            v.

ANTONIO LAMONT FRAZIER,

                 Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.     John A. Gibney, Jr.,
District Judge. (3:14−cr−00062−JAG−1)


Submitted:    May 29, 2015                 Decided:   August 28, 2015


Before WILKINSON, DIAZ, and HARRIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Geremy C.     Kamens, Federal Public Defender, Patrick L. Bryant,
Appellate    Attorney, Mary E. Maguire, Assistant Federal Public
Defender,    OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria,
Virginia,     for Appellant.     Dana J. Boente, United States
Attorney,     Alexandria, Virginia, Michael A. Jagels, Special
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Unpublished opinions are not binding precedent in this circuit.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:

     Antonio    Lamont    Frazier        pleaded    guilty        without    a    plea

agreement to one count of possession of a firearm by a convicted

felon, in violation of 18 U.S.C. § 922(g)(1).                      The presentence

report (“PSR”) calculated a Sentencing Guidelines range of 84-

105 months’ imprisonment.          The district court sentenced Frazier

to the statutory maximum of 120 months’ imprisonment.

     Frazier    appeals    his    sentence,     challenging         its   procedural

and substantive reasonableness.           We affirm.



                                         I.

                                         A.

     In   January     2014,   Frazier     was   approached        by   police     in   a

housing project in Richmond, Virginia.               He began to run, but he

slipped   and   fell.     As     Frazier      lay   on    the     ground,    officers

observed a black semi-automatic Ruger 9mm handgun in his hand.

Frazier was arrested.         A search of his person revealed a clear,

plastic sandwich bag that contained seven individually wrapped

plastic bag corners, which Frazier reported contained heroin.

                                         B.

    Frazier     was    indicted    and    pleaded        guilty    without    a   plea

agreement to one count of possession of a firearm by a convicted

felon, in violation of 18 U.S.C. § 922(g)(1).                      The Presentence

Investigation Report (“PSR”) computed his base offense level as

                                         2
24,   based     on   two   prior   felony    convictions    for   a   controlled

substance offense and for a crime of violence, as defined in

United States Sentencing Guidelines (“U.S.S.G.”) § 4B1.2 (2014).

The prior conviction for a crime of violence was for possession

of    a    short-barrel       shotgun,   while    the   controlled     substance

conviction      was     for    possession    of    heroin    with     intent   to

distribute.

      The PSR noted that Frazier possessed the 9mm handgun in

connection with another offense and enhanced his offense level

by four.       Frazier’s offense level was decreased by three levels

for acceptance of responsibility, resulting in a total offense

level of 25.         Together with a criminal history category of IV,

Frazier’s Guidelines range was 84-105 months’ imprisonment. 1

      Frazier did not object to the PSR’s Guidelines range, but

he did ask the district court to vary down from the range and

impose a sentence of 60 months’ imprisonment.               After considering

the       parties’    arguments    and   each     factor    under     18   U.S.C.

§ 3553(a), the court varied up from the Guidelines range and




      1According to Frazier, had the conviction for possession of
a short-barrel shotgun not counted as a crime of violence, his
base offense level would have been 22 and his Guidelines range
would have been 70-87 months’ imprisonment.     While we believe
the correct base offense level would have been 20, with a
Guidelines range of 57-71 months’ imprisonment, the difference
does not affect our analysis.



                                         3
sentenced       Frazier     to   the        statutory         maximum     of   120     months’

imprisonment.

     Frazier filed a timely appeal.



                                                II.

                                                 A.

     The Guidelines provide for an enhancement to the sentence

of   a    “career      offender”       if,        among       other     requirements,       the

defendant has at least two prior felony convictions for either a

“crime     of     violence”       or        a     controlled          substance       offense.

§ 4B1.1(a).         The     Guidelines          define    a    “crime    of    violence”      in

relevant    part       as   an   offense          that    “is    [the]     burglary      of   a

dwelling, arson, or extortion, involves use of explosives” or,

in what is known as the residual clause, “otherwise involves

conduct    that     presents      a    serious          potential       risk     of   physical

injury to another.”          § 4B1.2(a)(2).

                                                 B.

     Frazier      challenges          the       procedural      reasonableness         of   his

sentence on two grounds.                First, he argues that the district

court    erred    by      enhancing     his          sentence    under     the    Guidelines

residual clause because that clause is unconstitutionally vague.

Second,     Frazier         contends        that       his      prior     conviction        for

possession of a short-barrel shotgun does not fall within the

Guidelines residual clause definition of “crime of violence,”

                                                 4
because it is not similar, in kind or in degree of risk posed,

to the offenses enumerated within § 4B1.2.

       Because Frazier raises these claims for the first time on

appeal, we review for plain error.                   United States v. Lynn, 592

F.3d 572, 577 (4th Cir. 2010).              To meet his burden, Frazier must

show that an error (1) was made, (2) is plain, and (3) affects

his substantial rights.         Id.    If Frazier makes this showing, we

have discretion to remedy the error, and will do so “only if the

error    ‘seriously      affect[s]    the      fairness,    integrity       or    public

reputation of judicial proceedings.’”                 Puckett v. United States,

556 U.S. 129, 135 (2009) (quoting United States v. Olano, 507

U.S. 725, 736 (1993)).

       An error is plain when it is “clear or obvious,” meaning

that    “the   settled    law   of   the       Supreme    Court    or    this    [court]

establishes that an error has occurred,” or, in some cases, when

authority from other circuits is unanimous.                       United States v.

Carthorne,     726   F.3d    503,    516       &   n.14   (4th    Cir.    2013).     In

assessing a defendant’s claim, an error need only be plain by

the time of appellate review.               Henderson v. United States, 133

S. Ct. 1121, 1130 (2013).

       In Johnson v. United States, 135 S. Ct. 2551, 2557 (2015),

the Supreme Court held that the residual clause of the Armed

Career Criminal Act (the “ACCA”) is unconstitutionally vague.

Because the ACCA residual clause and the Guidelines residual

                                           5
clause are “substantially similar,” United States v. Seay, 553

F.3d 732, 738 (4th Cir. 2009), this case presents the issue of

whether          the   holding        in    Johnson       extends     to    the    Guidelines

residual clause. 2

       We        assume    without         deciding       that   plain     error     occurred,

meaning that Frazier’s proper Guidelines range should have been

either 57-71 or 70-87 months in prison.                              Nonetheless, for an

error       to    affect    a     defendant’s           substantial      rights,     “he    must

demonstrate that it ‘affected the outcome of the district court

proceedings.’”             Puckett, 556 U.S. at 135 (quoting Olano, 507

U.S.       at    734).      As    applied         here,    Frazier     must   point        to   “a

nonspeculative basis in the record to conclude that the district

court would have imposed a lower sentence but for the error in

calculating [the defendant’s] offense level.”                              United States v.

Knight, 606 F.3d 171, 180 (4th Cir. 2010).

       Frazier         fails     to   make       this    showing.      Not    only    did       the

district court reject Frazier’s request for a downward variant

sentence, but it also chose to vary upward to the statutory

maximum           prison       term        for     the      offense,       reasoning        that

       2In United States v. Hood, 628 F.3d 669, 670 (4th Cir.
2010),   we  held   that  possession  of  a   sawed-off  shotgun
constitutes a “crime of violence” under the Guidelines residual
clause.   Frazier acknowledges that his arguments are currently
foreclosed by Hood and, of course, the district court did not
have the benefit of the Supreme Court’s guidance in Johnson when
it sentenced Frazier.



                                                   6
“[g]iven . . . the danger to the public and the prior criminal

history,         and . . . the       fact    that          the   longest   stretches    of

noncriminal behavior occur when [Frazier is] in prison, I think

that a sentence of 120 months . . . is sufficient but does not

exceed the amount of time necessary to achieve the goals of

sentencing.”         J.A. 98.

       On this record, it would be sheer speculation to conclude

that the district court would have imposed a lesser sentence but

for the alleged error.                Thus, we decline to find plain error

with       respect    to     the    district          court’s     calculation    of    the

Guidelines range.



                                            III.

       We next consider Frazier’s argument that the district court

abused its discretion when it varied upward from the Guidelines

range in sentencing him.              Frazier contends that his sentence is

substantively unreasonable for three reasons.                         First, he argues

that       the    district    court        did       not    adequately     consider    the

sentences requested by the parties.                        The government asked for a

sentence within the Guidelines range, 3 while Frazier requested

that       the     district        court     vary          downward   to    60   months’



       3
       But the government noted that it would not object to a
sentence at the statutory maximum. J.A. 77.



                                                 7
imprisonment.         Second, Frazier asserts that the district court

placed     too      much    weight      on        his    criminal      record     and      gave

insufficient         consideration        to       the      evidence      in    mitigation.

Third,    Frazier      contends       that     the      district      court     performed     a

formulaic review of the 18 U.S.C. § 3553(a) factors, without

substantively considering each individual factor.

     We review sentencing decisions for reasonableness under a

deferential         abuse-of-discretion             standard.           Gall     v.       United

States, 552 U.S. 38, 46 (2007).                          We consider the sentence’s

substantive         reasonableness           by     “tak[ing]         into     account      the

totality       of   the    circumstances,           including       the      extent   of    any

variance from the Guidelines range.”                           Id. at 51.        A district

court    has     discretion      to    sentence         a   defendant     outside     of    the

Guidelines range, so long as it considers the parties’ arguments

and provides a sufficient and reasoned basis for its departure

or variance.         See United States v. Diosdado-Star, 630 F.3d 359,

364-65     (4th     Cir.     2011)     (noting          that    the    district       court’s

decision to depart or vary does not change this court’s review

or the justification that the district court must provide).                                   A

minor    variance         from   the    Guidelines           range     requires       a    less

significant justification than a major one.                           See Gall, 552 U.S.

at 50.

     Before sentencing, the district court notified the parties

that it would consider sentencing Frazier above the Guidelines

                                               8
range, up to the statutory maximum.                The PSR suggested that an

upward departure from the Guidelines range might be warranted,

because    Frazier’s      adult   criminal     record   contained       two    felony

convictions      and   four    misdemeanor      convictions      that    were       not

considered in calculating his criminal history category.                             See

U.S.S.G. § 4A1.3(a)(2) (noting that a district court may support

an upward departure by considering prior sentences not used in

calculating      the   defendant’s      criminal    history     category).           The

convictions that were not considered include abduction, assault

and battery, damage to property, carrying a concealed weapon,

and carrying a loaded shotgun.               The PSR also noted a potential

likelihood of Frazier’s committing other crimes, as he had been

found in violation of his supervised release on two occasions.

      At   sentencing,      the   district     court    chose   not     to    depart.

Instead, it heard both parties’ arguments and considered each

§ 3553(a) factor in turn before deciding to impose a variant

sentence.     In considering Frazier’s history and characteristics,

the   district    court    recognized     Frazier’s     difficult       upbringing,

substance   abuse      issues,    and   history    of   depression.           But   the

court also noted that Frazier has “a long history of violent and

nonviolent crime, which includes a fondness for firearms.”                          J.A.

93.    The court further noted Frazier’s “unrepentant criminal

activity,     his       past      assaultive       behavior, . . . his              past

possession of firearms, and the danger he poses to the public.”

                                         9
J.A. 97.        In deciding to impose the statutory maximum prison

term, the district court stated that a 120-month sentence would

“reflect the seriousness of the offense, promote respect for the

law, provide just punishment, afford adequate deterrence, and

protect       the    public   from    further       crimes   that    Mr.     Frazier    may

commit.”       J.A. 98.

     We        find      that       Frazier’s       sentence        is     substantively

reasonable.           The     district      court     adequately         considered     the

parties’       arguments      and    the    § 3553(a)    factors         before   deciding

that an upward variance was appropriate.                     In so doing, it acted

well within its discretion.



                                              IV.

        For    the    above      reasons,     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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