United States v. Donald Garner

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 6, 2019
• Docket: 18-4795
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4795

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DONALD RAY GARNER,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Dever III, District Judge. (7:16-cr-00116-D-19)

Submitted: June 13, 2019 Decided: August 6, 2019

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

Affirmed by unpublished per curiam opinion.

Robert L. Cooper, COOPER, DAVIS & COOPER, Fayetteville, North Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Donald Ray Garner appeals the 120-month sentence imposed after he pled guilty

to conspiracy to distribute and possess with intent to distribute unspecified quantities of

narcotics, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (2012) and 21 U.S.C. § 846

(2012). Garner’s sentence was within the 100- to 125-month Sentencing Guidelines

range determined at sentencing. On appeal, Garner disputes the district court’s factual

finding as to the drug quantity attributable to him for sentencing purposes. The

Government contends that the district court did not err and that, in any event, any such

error was harmless because it had no effect on the sentence imposed in that the district

court expressly announced the same sentence as an alternate upward variant sentence that

is supported by the record. We agree with the Government’s latter argument and affirm.

When a sentencing court imposes a Guidelines sentence and states that it would

impose the same term as an alternative variant sentence, “rather than review the merits of

each [Guidelines] challenge[ ], we may proceed directly to an ‘assumed error

harmlessness inquiry.’” United States v. Gomez-Jimenez, 750 F.3d 370, 382 (4th Cir.

2014) (quoting United States v. Hargrove, 701 F.3d 156, 162 (4th Cir. 2012)). An error

in the calculation of the Guidelines is harmless if: “(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.’” Id. (quoting United States v. Savillon-Matute, 636 F.3d 119, 123

(4th Cir. 2011)).

2 Here, the district court explicitly stated that it would have imposed the same 120-

month sentence even if it miscalculated Garner’s advisory Guidelines range. This

statement satisfies the first step of the harmlessness inquiry. Id. at 383.

We next consider whether Garner’s sentence would be reasonable even if the

Guidelines issue was decided in Garner’s favor—or, in other words, whether Garner’s

120-month sentence is substantively reasonable. United States v. McDonald, 850 F.3d

640, 643, 645 (4th Cir. 2017). The record reveals that the district court reviewed the 18

U.S.C. § 3553(a) (2012) sentencing factors in detail and concluded that a 120-month

sentence was sufficient, but not greater than necessary, due to the seriousness of the

underlying conspiracy, Garner’s chronic and unabated recidivism, and to protect the

public from Garner’s criminal conduct. Given the district court’s reasoning and the

deferential standard with which we review criminal sentences, see Gall v. United States,

552 U.S. 38, 51, 59-60 (2007), we conclude that Garner’s sentence would be

substantively reasonable even if the disputed Guidelines issue was resolved in his favor,

see Savillon-Matute, 636 F.3d at 123-24. Thus, even assuming the district court erred in

determining Garner’s base offense level, given the district court’s alternate variant

sentence, any such error is harmless.

Accordingly, we affirm the criminal judgment. 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