UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 17-4457
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PATRICIA G. SULLIVAN,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at Greenville. Bruce H. Hendricks, District Judge. (6:16-cr-00540-BHH-1)
Argued: September 28, 2018 Decided: December 6, 2018
Before NIEMEYER and KEENAN, Circuit Judges, and Norman K. MOON, Senior United States District Judge for the Western District of Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Jeffrey Mikell Johnson, Eutawville, South Carolina, for Appellant. William J. Watkins, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for Appellee. ON BRIEF: Beth Drake, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Patricia G. Sullivan pleaded guilty to one count of conspiracy to commit wire
fraud in violation of 18 U.S.C. § 1343. The district court deviated upward from the
advisory Guidelines range and imposed a 48-month sentence. Sullivan now contends that
her sentence was procedurally and substantively unreasonable. For the reasons that
follow, we affirm.
I.
Appellant Patricia Sullivan served as Postmaster in Greenville County, South
Carolina. She also operated a publishing company, HYPD Publishing. In March 2009,
HYPD published The Struggle of Love, an autobiography by Sharon Johnson. Following
the book’s publication, Sullivan and Johnson fabricated an elaborate narrative that
filmmaker Tyler Perry had purchased the rights to The Struggle of Love with the intention
of depicting Johnson’s life story in a movie and producing a reality television show
starring Johnson. Claiming to need bridge loans while awaiting a payment of $81 million
from Perry’s studio, Sullivan and Johnson targeted family, friends, and co-workers for
“investments,” promising lucrative returns. In total, the pair fraudulently obtained
$385,425 from 33 victims.
In January 2017, Sullivan and Johnson each pleaded guilty to one count of
conspiracy to commit wire fraud. The district court calculated each defendant’s advisory
Guidelines range as between 27 and 33 months’ imprisonment. J.A. 235. At a joint
sentencing hearing on April 26, 2017, the district court heard testimony from nine
victims. Six of these victims spoke exclusively of their interactions with Sullivan, and, of
2 those six, three were Sullivan’s close family members: her brother, sister, and an aunt
who helped raise her. J.A. 128–50. Both defendants addressed the court. Johnson gave
a brief statement expressing remorse. J.A. 157. Sullivan offered longer remarks, noting
that she felt “really, really bad about a couple of people” but stating that she “never sat
down and schemed or scammed anything or anybody.” J.A. 164–65. Sullivan also
asserted that she and Johnson did in fact have a “movie contract” with “Tyler Perry’s
cousin,” and that she “believed in what [she] was doing” throughout the conspiracy,
stating that “[t]he goal was a movie and that is where we were heading.” J.A. 164.
The district court sentenced Johnson to 27 months’ imprisonment and announced
that Sullivan’s sentencing would be deferred by 60 days, putting Sullivan “on notice of a
potential upward departure” as the court considered whether the Guidelines range was
“insufficient to satisfy the goals of punishment here.” J.A. 170–71.
On June 16, 2017, the district court sentenced Sullivan to 48 months’
imprisonment, 15 months above the advisory Guidelines range and 21 months above
Johnson’s sentence. The district court framed this sentence as an “upward departure . . .
or alternatively an upward variance.” J.A. 200. In explaining why an upward deviation
from the advisory Guidelines range was appropriate, the district court cited Sullivan’s
aggravated role in the conspiracy, lack of remorse, and willingness to target family
members. The district court further stated that, although it believed it had properly
imposed an upward departure, it “would have imposed this same sentence as an alternate
variant sentence in light of all of the [§] 3553 factors.” J.A. 206–07.
3 Sullivan’s counsel made a motion for reconsideration, arguing that Sullivan and
Johnson were “equally involved” in the conspiracy, and that Sullivan’s comparatively
lengthy sentence—“approximately twice as long” as Johnson’s—was unwarranted. J.A.
207–08. The district court denied the motion, stating that the two defendants were “not
similarly situated” given Sullivan’s “education, her skill, her polish, [and] her ability to
carry out the scheme,” as well as her “misuse of her role as a public official” and her
targeting of family members. J.A. 208–09.
II.
We review a sentence for both procedural and substantive reasonableness. See
Gall v. United States, 552 U.S. 38, 51 (2007). We first ensure that the district court
committed no significant procedural error, such as “improperly calculating [ ] the
Guidelines range, . . . selecting a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence.” United States v. Spencer, 848 F.3d 324, 328
(4th Cir. 2017) (quoting Gall, 552 U.S. at 51). If the sentence is procedurally sound, we
then consider its substantive reasonableness under a “deferential abuse-of-discretion
standard.” Id. At this step, we ask whether the district court abused its discretion in
“determining that the § 3553(a) factors supported the sentence and justified a substantial
deviation from the Guidelines range,” giving “due deference” to the district court’s
decision that “the § 3553(a) factors, on a whole, justify the extent of the variance.”
United States v. Diosdado-Star, 630 F.3d 359, 366 (4th Cir. 2011). While a district
court’s explanation for the sentence must “support the degree of the variance,” it need not
find “extraordinary circumstances” to justify a deviation from the Guidelines. Spencer,
4 848 F.3d at 328. Rather, because district courts are “in a superior position to find facts
and judge their import,” all sentencing decisions—“whether inside, just outside, or
significantly outside the Guidelines range”—are entitled to “due deference.” Id.
With these principles in mind, we turn now to Sullivan’s arguments.
III.
Sullivan raises two procedural arguments against her sentence. First, she contends
that the district court made erroneous factual findings unsupported by the record.
Second, she argues that the district court failed to adequately explain its imposition of a
48-month sentence. Both arguments are without merit.
A.
Sullivan first argues that the district court made erroneous factual findings
regarding her role in the conspiracy, abuse of her position as Postmaster, and lack of
remorse. A sentencing court’s factual findings are reviewed for plain error. See United
States v. White, 771 F.3d 225, 235 (4th Cir. 2014); United States v. Dowell, 771 F.3d 162,
170 (4th Cir. 2014). We must uphold any factual finding of the sentencing court that
appears “plausible in light of the record viewed as a whole,” even if we might have
“weighed the evidence differently.” United States v. Wooden, 693 F.3d 440, 451 (4th
Cir. 2012). Under this deferential standard of review, we uphold each of the three factual
findings that Sullivan challenges.
1.
Sullivan contends that the record lacks evidence that she played a greater role in
the offense than her co-conspirator Johnson. The district court noted that Sullivan’s
5 “polish,” education, and stature as a public official gave her a more “extreme ability” to
carry out the conspiracy than Johnson, who the district court viewed as “more of a street
person.” J.A. 209. Additionally, the district court asserted that Sullivan took “extreme
advantage” of family members and co-workers in a “much more insidious and extreme
and underhanded way.” Id. The district court arguably overemphasized Sullivan’s role
in the conspiracy relative to Johnson’s role. In Sullivan’s pre-sentence report, Johnson
and Sullivan were depicted as equal partners. J.A. 227–29. 1 Without question, Johnson
played a significant role in the conspiracy, writing the underlying biography, recruiting
victims, meeting with financial advisers, and creating fraudulent sales agreements and
bank statements. J.A. 227–28. However, the record, “viewed in its entirety,” can
plausibly be read to support the district court’s finding that Sullivan’s role in the
conspiracy was comparatively more invidious. Wooden, 693 F.3d at 451.
The record shows that Sullivan was a more sophisticated actor, given her stature as
Postmaster and her superior educational achievements (an Associate’s Degree) compared
to Johnson, who did not complete high school. J.A. 126. Several victims who spoke at
the sentencing hearing testified that they were persuaded to give money to Sullivan in
part because of their “high regard for her accomplishments,” J.A. 131, and her position as
Postmaster. J.A. 148. Moreover, the record supports the district court’s finding that
1 Sullivan makes much of the Government’s remark at sentencing that she and Johnson were “very much equal partners” in the conspiracy. J.A. 194–95. This selective quotation misstates the Government’s position. Later in the same sentence Sullivan quotes, the Government asserted that Sullivan’s “education, skills, [and] position in the community” allowed Johnson and Sullivan to “push [the conspiracy] much further than Sharon Johnson would have been able to do on her own.” J.A. 195.
6 Sullivan’s role in the conspiracy was more “extreme” than Johnson’s. J.A. 209. Sullivan
undertook several unilateral actions in furtherance of the conspiracy, including writing
bad checks to victims, contracting to pay $665,000 in cash for an upscale home,
contacting a rental agency to rent a property on behalf of a “celebrity client,” forging the
names of three victims on loan applications, and contacting various potential victims,
including a retired postal employee. J.A. 227, 229. Additionally, Sullivan targeted and
defrauded close family members. J.A. 128–29; 132–36. Nothing in the record
establishes that Johnson similarly targeted close family members, and, of the nine victims
who spoke at the sentencing hearing, six spoke exclusively about their interactions with
Sullivan. J.A. 128–38; 148–50. Accordingly, although other factfinders may not have
concluded that Sullivan played a greater role in the conspiracy than Johnson, the district
court’s conclusion that she did is plausible and not clearly erroneous in light of the record
as a whole.
2.
Sullivan next challenges the district court’s finding that victims “trusted” Sullivan
in part because of her “credentials as a public official,” and that Sullivan used that trust to
deceive victims. J.A. 202–03, 209. Here again, we affirm the district court’s factual
finding as “plausible in light of the record viewed as a whole.” Wooden, 693 F.3d at 451.
The record includes ample support for the district court’s determination that Sullivan
exploited the trust victims placed in her as a public official. For instance, one victim
testified that he “trusted” Sullivan because of his “high regard for her accomplishments.”
J.A. 131. The owner of the home Sullivan contracted to purchase testified that she agreed
7 to the contract because she concluded the deal “ha[d] to be a legitimate thing” since
Sullivan was the “Postmaster of Greenville County” and “somebody who has a name
that’s known.” J.A. 148. Additionally, as Sullivan concedes in her brief, she utilized her
contacts as a postal employee on at least one occasion in furtherance of the conspiracy
when she requested a loan from a retired postal worker. J.A. 229. Thus, there is an
adequate basis in the record for the district court’s determination that Sullivan exploited
her role as Postmaster in carrying out the conspiracy.
3.
Sullivan faults the district court’s finding that she “showed no remorse for her
actions” and even “tried to shift the blame to the victims for their role in seeking financial
windfalls by lending her money.” J.A. 203. We must give “great deference” to a district
court’s decision regarding a defendant’s acceptance of responsibility because the
“sentencing judge is in a unique position to evaluate a defendant’s” contrition. United
States v. Dugger, 485 F.3d 236, 239 (4th Cir. 2007). Here, the record supports the
district court’s finding that Sullivan did not demonstrate genuine remorse. Sullivan
apologized to some victims and stated that she felt “really, really bad about a couple of
people,” implying there were other victims she did not feel “bad about.” J.A. 165. She
also stated that she “believed in what [she] was doing” and was confident that “[t]he
money was going to come in.” J.A. 164. Sullivan made several fantastical claims that
demonstrate a lack of remorse, including that she and Johnson had a “movie contract”
with “Tyler Perry’s cousin” and a “perfume deal with Fantasia,” the Season 3 winner of
the television show American Idol. Id. Additionally, Sullivan made comments impliedly
8 blaming victims, stating that “things just went south” once “people went on the internet,”
and that she remained “in close communications with the victims” until “they shut
down.” J.A. 164–65. Moreover, two victims testified that Sullivan never apologized to
them or acknowledged any wrongdoing prior to her guilty plea. J.A. 133–34, 147.
Accordingly, the district court’s conclusion that Sullivan was not genuinely remorseful
had adequate support in the record.
In sum, all three of the challenged factual findings are plausible in light of the
record as a whole. The district court did not commit plain error in making these factual
findings.
B.
Sullivan next argues that the district court committed procedural error by not
adequately explaining its sentence. District courts must “explain the basis for their
sentence” and provide an “individualized rationale” that is “tailored to the particular case
at hand.” United States v. Spencer, 848 F.3d 324, 329 (4th Cir. 2017) (quoting United
States v. Carter, 564 F. 3d 325, 328–30 (4th Cir. 2009)). A sentencing court also must
address a defendant’s “nonfrivolous reasons for imposing a different sentence” and
“explain why [she] has rejected those arguments.” Carter, 564 F.3d at 328.
As we discuss below, the district court was imprecise about whether the upward
deviation from the Guidelines advisory range it imposed was a variance or an upward
departure. 2 Nevertheless, the district court provided an “individualized rationale” for
2 A “departure” is a “change from the final sentencing range computed by examining the provisions of the Guidelines themselves,” while a “variance” occurs where
9 Sullivan’s sentence. Spencer, 848 F.3d at 329 (finding similar imprecision not grounds
for reversal under plain error standard). The district court discussed the relevant §
3553(a) factors underlying its sentence and addressed counsel’s objections about whether
Sullivan and Johnson were similarly situated defendants. J.A. 200–10. Moreover, any
imprecision in the district court’s explanation of Sullivan’s sentence was a far cry from
cases where we have vacated sentences on procedural grounds because of a district
court’s inadequate explanation. For instance, in Carter, 564 F.3d at 329, we vacated a
sentence on procedural grounds where the district court gave no explanation for “how the
sentencing factors applied to the facts of the particular case before it” but rather
articulated a justification that “could apply to any sentence.” The district court’s
explanation and application of the § 3553(a) factors was far more thorough here.
Accordingly, we find the district court’s explanation of its sentence was adequate.
Having rejected Sullivan’s two procedural arguments, we turn now to Sullivan’s
primary argument that the district court imposed an impermissible upward departure.
IV.
In announcing Sullivan’s 48-month sentence, the district court oscillated between
calling the sentence an “upward departure” and a “variance” pursuant to U.S.C. §
the sentencing judge “imposes a sentence above or below the otherwise properly calculated final sentencing range based on application of the other statutory factors in 18 U.S.C. § 3553(a).” United States v. Rangel, 697 F.3d 795, 801 (9th Cir. 2012). Although the “practical effects of applying either a departure or variance are the same,” we have previously noted that “colloquial migration between the two concepts” is “at a minimum imprecise.” Spencer, 848 F.3d at 328 (quoting United States v. Diosdado-Star, 630 F.3d 359, 365 (4th Cir. 2011)).
10 3553(a). Sullivan contends that the district court predominately framed the sentence as
an upward departure and weighed two factors prohibited for consideration in imposing
upward departures under U.S.S.G. § 5K2.0, namely Sullivan’s aggravated role in the
conspiracy and lack of remorse. Sullivan argues that this error warrants reversal of her
sentence. We disagree.
To be sure, the district court was “at a minimum imprecise” about whether it was
imposing an upward departure or a variance, Spencer 848 F.3d at 328, at times
referencing an “upward departure” and U.S.S.G. § 5K2.0 and at times referencing an
“upward variance” and the § 3553(a) factors. J.A. 200–01; 204–05; 207. Moreover, to
the extent that the district court framed Sullivan’s sentence as an “upward departure,” its
consideration of Sullivan’s aggravated role in the conspiracy and lack of remorse was
improper. J.A. 202–03, 208–09. See U.S.S.G. 5K2.0 (sentencing court “may not depart
from the applicable guideline range” based on the “defendant’s acceptance of
responsibility for the offense” or the “defendant’s aggravating or mitigating role in the
offense”). However, rather than “wading into the morass” of whether the district court’s
imprecision affirmatively constituted error, “we may simply assume that an error
occurred because the alleged error is harmless.” United States v. Savillon-Matute, 636
F.3d 119, 123 (4th Cir. 2011). Under an “assumed error harmlessness inquiry,” we
affirm a district court’s allegedly erroneous sentence if (1) the district court made clear
that it “would have reached the same result even if” it had not made the alleged error and
(2) the “sentence would be reasonable” absent the alleged error. Id. It would “make no
sense” to “set aside a reasonable sentence” where the district court “has already told us
11 that it would impose exactly the same sentence, a sentence we would be compelled to
affirm.” Id. (quoting United States v. Keene, 470 F.3d 1347, 1350 (11th Cir. 2006)).
Here, the district court’s sentence satisfies both prongs.
Under the first prong, we assess whether the district court made clear that “it
would have reached the same result” in imposing a 48-month sentence even if it had not
imposed an upward departure on grounds prohibited by § 5K2.0. The district court
explicitly stated that it “would have imposed this same sentence as an alternate variant
sentence in light of all of the [§] 3353 factors and in light of the totality of the
circumstances present in this case.” J.A. 206–07. We have consistently affirmed
sentences where, as here, the district court made an express statement that it would have
imposed the same sentence under § 3553 regardless of any error. See, e.g., United States
v. McDonald, 850 F.3d 640, 644–45 (4th Cir. 2017); United States v. Gomez-Jimenez,
750 F.3d 370, 383 (4th Cir. 2014); United States v. Hargrove, 701 F.3d 156, 163–64 (4th
Cir. 2012). 3 Given the district court’s explicit statement that it would have imposed the
3 Sullivan contends that the district court’s statement that it would have imposed the same sentence as a variance is insufficient to vitiate the underlying error because the district court gave no additional reasons under § 3553 to justify the variance beyond the grounds prohibited by § 5K2.0, namely Sullivan’s heightened role in the conspiracy and lack of remorse. This argument fails. The district court explicitly referenced factors beyond Sullivan’s heightened role in the conspiracy and lack of remorse, including the need to instill in Sullivan respect for “the laws of society,” “afford adequate deterrence,” and “protect the public from further crimes.” J.A. 204. All of these factors are specifically enumerated in § 3553(a)(2). Moreover, to the extent that the district court also considered Sullivan’s role in the conspiracy as part of the § 3553 variance analysis, this would be entirely appropriate under both § 3553(a)(1), which requires consideration of the “nature and circumstances of the offense and the history and characteristics of the defendant,” and § 3553(a)(2)(A), which requires a sentencing judge to consider the “seriousness of the offense.”
12 same 48-month sentence as a variance in light of all the § 3553(a) factors, we find that
the district court made it sufficiently clear that it “would have reached the same result”
even if it had not framed Sullivan’s sentence as an upward departure and considered
factors prohibited under § 5K2.0. Savillon-Matute, 636 F.3d at 123.
Under the second prong, we assess whether Sullivan’s 48-month sentence, viewed
as a variance under § 3553, is substantively reasonable. “Substantive reasonableness
examines the totality of the circumstances to see whether the sentencing court abused its
discretion in concluding that the sentence it chose satisfied the standards set forth in §
3553(a).” United States v. Hargrove, 701 F.3d 156, 160–61 (4th Cir. 2012). A major
variance from the advisory Guidelines range “should be supported by more significant
justification than a minor” variance. United States v. Zuk, 874 F.3d 398, 409 (4th Cir.
2017). However, the fact that a variance departs upward from the advisory range does
not “alone render it presumptively unreasonable.” United States v. Rivera-Santana, 668
F.3d 95, 106 (4th Cir. 2012). Such upward variances are “reviewed under the same
deferential abuse-of-discretion standard” as sentences imposed within the Guidelines
range. Id. We have affirmed upward variances significantly higher than the 15-month
variance imposed here in cases where the district court adequately explained its sentence
in light of the § 3553(a) factors. See, e.g., Rivera-Santana, 668 F.3d at 106 (affirming
90-month variance where district court gave “individualized assessment . . . in light of the
§ 3553(a) factors”); Diosdado-Star, 630 F.3d at 367 (affirming sentence six years above
advisory range where court adequately explained variance in under § 3553(a) factors);
United States v. Evans, 526 F.3d 155, 165 (4th Cir. 2008) (upholding sentence eight years
13 above advisory range where court found that “both the Guideline departure provisions
and the 3553(a) factors supported its sentence,” and sentence was “well-justified by §
3553(a) factors” (emphasis in original)).
Here, we find Sullivan’s 48-month sentence substantively reasonable. Although
the district court’s explanation of Sullivan’s sentence was imprecise, the court referenced
application of the § 3553(a) factors at least five times when announcing Sullivan’s
sentence. (JA 200–01, 204–05). In addition to noting that it would have imposed the
same sentence as a variance “in light of all of the [§] 3553(a) factors,” J.A. 206–07, the
district court described Sullivan’s “characteristics,” as well as the “nature and
circumstances of the offense,” noting in particular Sullivan’s deception of family
members and victims’ trust in Sullivan as a public official. J.A. 202–03. See 18 U.S.C. §
3553(a)(1). Additionally, the district court noted that Sullivan’s lack of remorse
demonstrated a heightened need to “deter future criminal conduct by this Defendant” and
instill “proper respect for the law.” See § 3553(a)(2)(A)-(B). Moreover, the court noted
that it had considered the need to “protect the public from further crimes of the
Defendant,” as called for under § 3553(a)(1)(C). Accordingly, we find that Sullivan’s
sentence was “well-justified by the § 3553(a) factors” and thus substantively reasonable.
Evans, 526 F.3d at 165.
We find no merit in Sullivan’s two arguments challenging the substantive
reasonableness of her sentence. First, Sullivan contends that the district court failed to
explain why an above-Guidelines range sentence was necessary to deter future crimes
and address the harm inflicted on victims for Sullivan but not for Johnson. But the district
14 court addressed this argument explicitly in response to Sullivan’s motion to reconsider
the 48-month sentence. J.A. 207–08. In denying the motion, the district court stated that
Sullivan and Johnson were “not similarly situated” given Sullivan’s relative “education,
her skill, her polish, her ability to carry out the scheme,” her “misuse of her role as a
public official,” and the “extreme advantage” Sullivan took over family members. J.A.
208–09. As we held above, these factual distinctions are plausible in light of the record
as a whole. Thus, contrary to Sullivan’s assertions, the district court did explain its view
that Sullivan’s conduct merited a higher sentence than Johnson’s.
Second, Sullivan argues that her 48-month sentence creates an unwarranted
sentencing disparity between her and other similarly situated defendants convicted of
fraud offenses. See 18 U.S.C. 3553(a)(6). Sullivan cites U.S. Sentencing Commission
data that the mean prison sentence for defendants convicted of fraud offenses in 2016 was
25 months, while the median was 13 months. Extrapolating from this data, Sullivan’s 48-
month sentence was nearly double the mean sentence, and more than triple the median
sentence. Additionally, Sullivan cites data that only 2.1% of defendants convicted of
fraud offenses received an above-Guidelines sentence in 2016 and argues that she is not
among the worst 2.1% of such defendants.
In reviewing alleged sentencing disparities, we assess whether the disparity
between a particular defendant and other similarly situated defendants is “substantial.”
United States v. Zuk, 874 F.3d 398, 411–12 (4th Cir. 2017). Even if a sentence “is more
severe than average, that fact does not mean it was unwarranted.” United States v.
Rivera-Santana, 668 F.3d 95, 106 (4th Cir. 2012) (noting that “comparisons of sentences
15 may be treacherous because each sentencing proceeding is inescapably individualized”).
A reviewing court should not “isolate a possible sentencing disparity to the exclusion of
all the other § 3553(a) factors.” Id. (citing United States v. Irving, 554 F.3d 64, 76 (2d
Cir. 2009) (“[A]verages of sentences that provide no details . . . are unreliable to
determine unwarranted disparity because they do not reflect the enhancements or
adjustments . . . that distinguish individual cases.”)).
Although Sullivan may well be correct that her sentence is more severe than the
national average for fraud-related offenses in 2016, this fact alone does not negate the
district court’s consideration and application of the § 3553(a) factors. Even if the district
court failed to address all possible sentencing disparities between Sullivan and other
similarly situated defendants convicted of fraud offenses, a sentencing court “need not
explain every disparity during sentencing.” Zuk, 874 F.3d at 412. Accordingly, because
the district court was not required to address all possible statistical sentencing disparities,
and because the district court’s application of the § 3553(a) factors to Sullivan was
individualized and thorough, we reject Sullivan’s argument that her 48-month sentence
reflects an unwarranted sentencing disparity between Sullivan and other similarly situated
defendants.
In sum, despite the district court’s “colloquial migration between” imposing an
upward departure and an upward variance, we affirm the court’s imposition of a 48-
month sentence. Spencer, 848 F.3d at 328 (4th Cir. 2017). Because the district court
made clear that it “would have reached the same result” as an upward variance, and
because the 48-month sentence the district court imposed was substantively reasonable
16 under the § 3553(a) factors, any error the court committed by appearing to impose an
upward departure on grounds prohibited by § 5K2.0 was harmless. Savillon-Matute, 636
F.3d at 123.
The judgment of the district court is accordingly
AFFIRMED.