                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-4618


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

BOAZ SALMON BRATTON-BEY, a/k/a Moadian Bratton-Bey, a/k/a
Azariah Bratton, a/k/a Keith Banks,

                Defendant - Appellant.



                             No. 12-4620


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MOADIAN ELAM BRATTON-BEY, a/k/a Boaz Bratton-Bey, a/k/a
Modian Elam, a/k/a Jason Smith, a/k/a Joshua Builder, a/k/a
Yarachmiel Messing, a/k/a Malik Jones,

                Defendant - Appellant.


Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Benson Everett Legg, Senior District
Judge. (1:10-cr-00580-BEL-2, 1:10-cr-00580-BEL-1)


Submitted:   June 21, 2013                 Decided:   August 1, 2013


Before WILKINSON, MOTZ, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.


James Wyda, Federal Public Defender, Baltimore, Maryland, Sapna
Mirchandani, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore,
Maryland, for Appellant Boaz Bratton-Bey.        Marc Resnick,
Washington, D.C., for Appellant Moadian Bratton-Bey.     Rod J.
Rosenstein, United States Attorney, Tamera L. Fine, Assistant
United States Attorney, Justin S. Herring, Assistant United
States   Attorney,  OFFICE   OF  THE UNITED   STATES  ATTORNEY,
Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

     Moadian Bratton-Bey and Boaz Bratton-Bey (collectively the

Bratton-Beys) along with seventeen co-defendants, were charged

in a 49-count indictment of crimes growing out of a credit card

fraud conspiracy.        Both Bratton-Beys pled guilty, without plea

agreements,   to   one    count   each   of   bank   fraud   conspiracy    in

violation of 18 U.S.C. § 1349, access device fraud in violation

of 18 U.S.C. § 1029, and aggravated identity theft in violation

of 18 U.S.C. § 1028A.          The district court sentenced Moadian

Bratton-Bey to 120 months’ imprisonment, and Boaz Bratton-Bey to

102 months’ imprisonment.         In these consolidated appeals, the

Bratton-Beys challenge their sentences on multiple grounds.

     We review a sentence under an abuse of discretion standard

for procedural and substantive reasonableness.               Gall v. United

States, 552 U.S. 38, 51 (2007).               We first “ensure that the

district court committed no significant procedural error.”                Id.

“If, and only if, we find the sentence procedurally reasonable

can we ‘consider the substantive reasonableness of the sentence

imposed.’”    United States v. Carter, 564 F.3d 325, 328 (4th Cir.

2009) (quoting Gall, 552 U.S. at 51).             In assessing whether a

sentencing court properly calculated the Guidelines sentencing

range, we review the court’s factual findings for clear error

and its legal conclusions de novo.             United States v. Osborne,

514 F.3d 377, 387 (4th Cir. 2008).

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      With these standards in mind, we turn to the first issue,

which    is    raised       by    both    Bratton-Beys:          the    district    court’s

asserted error in determining that they were responsible for

intended losses of more than $2.5 million but not more than $7

million,        resulting           in      an       18-level       enhancement         under

§ 2B1.1(b)(1).             We review “for clear error the district court’s

factual determination of the amount of loss attributable to [a

defendant], mindful that the court need only make a reasonable

estimate of the loss.”                   United States v. Cloud, 680 F.3d 396,

409 (4th Cir.) (construing § 2B1.1 cmt. n. 3(C)), cert. denied,

133   S.    Ct.      218    (2012).        This      deferential       standard    requires

reversal       only    if    we    are     “‘left     with    the   definite      and   firm

conviction that a mistake has been committed.’”                            United States

v.    Stevenson,       396       F.3d     538,    542   (4th     Cir.     2005)    (quoting

Anderson v. Bessemer City, 470 U.S. 564, 573 (1985)).

      The      Bratton-Beys        contend       that   the     district    court’s      loss

calculation had three defects:                    (1) use of the aggregate credit

limits of all the fraudulent cards as a proxy for the intended

loss amount; (2) reliance on the government’s loss spreadsheet,

which      assertedly         lacked      sufficient         data   for    a   meaningful

challenge to the loss amount; and (3) attribution to them of a

loss amount more than ten times the amount attributed to their

co-defendants who entered into written plea agreements.

        Even    if    the    Bratton-Beys         are   correct     that    the    district

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court committed the calculation errors, such procedural error is

harmless when (1) the appellate court has “knowledge that the

district court would have reached the same result even if it had

decided     the    guidelines          issue      the       other       way,”     and    (2)    “the

sentence would be reasonable even if the guidelines issue had

been   decided         in    the     defendant's        favor.”            United       States   v.

Savillon–Matute, 636 F.3d 119, 123 (4th Cir. 2011) (internal

quotation marks omitted).               Such is the case here.

       It   is     clear       from    the     record            that    regardless        of    the

Guidelines, the district court would have imposed the challenged

sentences,       and    that       those    sentences            are    reasonable.        For   in

sentencing       both       Bratton-Beys,         after      the       court    calculated       the

Guidelines        range,       and    considered            arguments       for    and     against

various enhancements, it concluded that the Guidelines sentences

“would be wrong” in this case.                    JA 951.          As the court explained,

“the   sentencing           guidelines       do       not    provide       a    great     deal   of

assistance in determining what the sentence should be because

. . . the guideline sentence is an unreasonable sentence.”                                        JA

831; see also JA 964-967.                  The court then significantly departed

downward from the recommended Guidelines sentence.                                       Moreover,

any    Guidelines           calculation      error          is    also    harmless        and    the

sentence reasonable given that the district court independently

justified the sentence under the § 3553(a) factors.                                     See United

States v. Grubbs, 585 F.3d 793, 804–05 (4th Cir. 2009)

                                                  5
       We therefore decline to disturb the Bratton-Beys’ sentences

on    this   basis.      For       the     same     reasons,     we    also   reject   the

Bratton-Beys’        other    common       argument,      that    the   district      court

erroneously     imposed       a    four-level       sentencing        enhancement     under

U.S.S.G. § 3B1.1(a).              Accordingly, we turn to the issues unique

to each defendant.

       Moadian argues that the district court erred in attributing

the    entire    loss        amount        to     him.      He    asserts      that    his

incarceration in January 2010 severed his participation in the

conspiracy and so the court erred in attributing losses accrued

during that incarceration.                 The difficulty with this argument is

that, once established, a conspiracy “is presumed to continue

unless or until the defendant shows that . . . he withdrew from

it.”     United States v. Walker, 796 F.2d 43, 49 (4th Cir. 1986).

“[M]ere cessation of activity in furtherance of the conspiracy

is    insufficient.”          Id.     at    49.      To    establish     withdrawal,      a

defendant must prove “[a]ffirmative acts inconsistent with the

object of the conspiracy and communicated in a manner reasonably

calculated to reach [his] co-conspirators.”                           United States v.

United States Gypsum Co., 438 U.S. 422, 464-65 (1978); see also

Smith v. United States, 133 S. Ct. 714, 718-21 (2013).                           Moadian

failed to identify any “affirmative act inconsistent with the

object    of   the    conspiracy”          or   prove     that   he    communicated     his

withdrawal “in a manner reasonably calculated to reach his co-

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conspirators.”            Accordingly, this challenge to his sentence also

fails.

       Boaz argues that the district court imposed a procedurally

and    substantively           unreasonable        sentence    because          it       failed    to

account       for       the    culpability      of    Boaz     relative             to    his     co-

defendants.              He   asserts   that    the    court        should      have       imposed

“proportionally equal sentences relative to each [defendant’s]

guideline range” to arrive at a reasonable sentence for each.

His contention clearly fails.                  As explained above, the sentence

is     not    procedurally         unreasonable.              Nor        was    the       sentence

substantively unreasonable.

       After       calculating      Boaz’s     Guidelines       range          to    be    235-293

months, the district court varied downward from the low end of

this range by more than 11 years to a 102–month sentence.                                         The

length       of     a     below-Guidelines         sentence         is     “entitled         to     a

presumption of reasonableness.”                    United States v. Susi, 674 F.3d

278,    289       (4th    Cir.   2012).        Moreover,      when        a    district         court

imposes a variance sentence, we may take into account the degree

of the variance when considering the sentence’s reasonableness.

See United States v. Abu Ali, 528 F.3d 210, 268 (4th Cir. 2008).

       The record reveals that the district court appropriately

considered Boaz’s culpability relative to Moadian and others in

selecting the 102-month sentence.                     See JA 990-92.                 On the one

hand, the court noted that Boaz played a lesser leadership role

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than Moadian and that although the Guidelines placed Boaz in

Criminal       History   Category     II,   based      on   his     convictions     Boaz

“really looks like a [Category] I . . . in terms of the general

scheme of things.”            Id. 990-91.       On the other hand, the court

noted the seriousness of the offense, the number of individuals

victimized, and the ease with which this crime can be committed.

Id.     992.      The    court      plainly     weighed       the    mitigating     and

aggravating       factors     and   decided     that    the    102–month      sentence

served “the § 3553(a) factors, on a whole.”                       Gall, 552 U.S. at

51 (2007).       In doing so, the court did not err.

      For the foregoing 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   the    court   and     argument      would    not    aid   the

decisional process.



                                                                              AFFIRMED




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