United States v. Joshua Roy ( 2023 )


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  • USCA4 Appeal: 21-4312      Doc: 63           Filed: 12/12/2023   Pg: 1 of 16
    PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 21-4312
    UNITED STATES OF AMERICA,
    Plaintiff – Appellee,
    v.
    JOSHUA AARON ROY,
    Defendant – Appellant.
    No. 21-4327
    UNITED STATES OF AMERICA,
    Plaintiff – Appellee,
    v.
    JOSHUA AARON ROY,
    Defendant – Appellant.
    Appeals from the United States District Court for the Northern District of West Virginia at
    Elkins. Thomas S. Kleeh, Chief District Judge. (2:20-cr-00035-TSK-MJA-1; 2:20-cr-
    00026-TSK-MJA-4)
    USCA4 Appeal: 21-4312     Doc: 63        Filed: 12/12/2023   Pg: 2 of 16
    Argued: October 27, 2023                                 Decided: December 12, 2023
    Before DIAZ, Chief Judge, WILKINSON, Circuit Judge, and Robert S. BALLOU, United
    States District Judge for the Western District of Virginia, sitting by designation.
    Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Chief Judge
    Diaz and Judge Ballou joined.
    ARGUED: Edmund J. Rollo, Morgantown, West Virginia, for Appellant. Stephen Donald
    Warner, OFFICE OF THE UNITED STATES ATTORNEY, Elkins, West Virginia, for
    Appellee. ON BRIEF: William Ihlenfeld, United States Attorney, OFFICE OF THE
    UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee.
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    WILKINSON, Circuit Judge:
    Joshua Roy pleaded guilty to unlawful possession of a firearm and aiding and
    abetting possession with intent to distribute at least 40 grams of fentanyl. The court
    sentenced Roy to 120 months’ imprisonment and 5 years of supervised release. Roy
    challenges his sentence as procedurally unreasonable, claiming the district court erred by
    relying on facts that were clearly erroneous or outside the record. We find this claim
    unpersuasive and affirm the judgment below.
    I.
    A.
    In January 2020, Joshua Roy was driving his stepdaughter Kelsey Ault and her
    partner Joshua Rutherford in Rutherford’s Cadillac. Law enforcement officers had the
    vehicle under surveillance because they suspected that Rutherford was transporting
    narcotics from Baltimore to West Virginia. The officers conducted a traffic stop in
    Wardensville, West Virginia, and asked everyone to step out of the vehicle. Roy and Ault
    complied. Rutherford, who was sitting in the back seat, made a run for it. After a foot chase,
    officers caught Rutherford and seized 447 fentanyl capsules weighing 61.98 grams that he
    had taken out of the car with him. Rutherford, Roy, and Ault were arrested. After being
    read his Miranda rights, Roy admitted that the group had traveled to Baltimore so that
    Rutherford and Ault could acquire heroin. Roy claimed that he joined the trip to protect his
    stepdaughter and drove the car because he was the only one with a license.
    Ten days later, police officers responded to a report of shoplifting at a gas station in
    Petersburg, West Virginia. Officers identified the getaway vehicle on surveillance footage
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    and stopped it thirty minutes later. They found Roy, who had been released from custody
    after the fentanyl arrest, behind the wheel, and another person sitting beside him. A search
    of the vehicle revealed a handgun and box of ammunition in the center console. Officers
    determined that Roy was a felon and arrested him for unlawful possession of a firearm.
    While in custody, Roy told his wife on a recorded phone line that the gun belonged to him.
    In August 2020, a federal grand jury in the Northern District of West Virginia
    charged Roy with conspiracy to distribute at least 40 grams of fentanyl, interstate travel to
    promote an unlawful activity, and aiding and abetting possession with intent to distribute
    at least 40 grams of fentanyl. In October 2020, Roy was also charged with unlawful
    possession of a firearm.
    These charges were far from Roy’s first brushes with the law. He had previously
    been convicted of 27 non-traffic offenses, including nighttime burglary, burglary, grand
    larceny, breaking and entering, contempt of court, and domestic battery.
    Pursuant to a written agreement, Roy pleaded guilty to two counts: (1) aiding and
    abetting possession with intent to distribute at least 40 grams of fentanyl in violation of 
    21 U.S.C. § 841
    (a)(1), (b)(1)(B)(vi), and 
    18 U.S.C. § 2
    ; and (2) possession of a firearm as a
    felon in violation of 
    18 U.S.C. §§ 922
    (g)(1) and 924. Roy also waived his right to appeal
    his sentence. In turn, the government agreed to pursue concurrent sentences for the two
    offenses in a single sentencing proceeding and to recommend a sentence at the lowest end
    of the Sentencing Guidelines.
    B.
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    At the sentencing hearing, the district court determined that Roy’s Guidelines range
    was 77 to 96 months’ imprisonment and 2 to 5 years of supervised release. Roy offered no
    objections to the court’s calculation, which was based on the presentence report that Roy,
    his counsel, and the government each confirmed they had reviewed and accepted.
    The district court forewarned that it was “consider[ing] a potential upward variant
    sentence” due to “Mr. Roy’s criminal history, as well as the amount of fentanyl that we are
    dealing with here.” J.A. 22. The court then let Roy proceed with allocution. Roy revealed
    that his stepdaughter Ault had recently died as a result of her fentanyl use. He apologized
    for his actions and stated that his addiction had motivated his criminal behavior. He also
    claimed his stepdaughter’s death had caused him to consider the consequences of his
    actions and become a changed man.
    The court next gave Roy’s counsel and the government an opportunity to
    recommend a sentence and to challenge the court’s reasoning for its proposed upward
    variance. Roy’s counsel maintained there was no need for an upward variance because the
    Guidelines calculation already accounted for the large amount of fentanyl and Roy’s
    significant criminal history. The prosecutor agreed, stating that the leadership of the U.S.
    Attorney’s Office had reviewed the plea agreement and that the Department of Justice
    stood behind it. While the prosecutor acknowledged that the case may have involved the
    largest quantity of fentanyl that he had ever seen, he noted that Roy had been forthright,
    truthful, and cooperative throughout the investigation. He urged the court to sentence Roy
    at the lowest end of the Guidelines.
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    The court acknowledged that Roy’s criminal history and offense levels were
    “already baked into the [G]uideline ranges.” J.A. 28. But it found “the [G]uidelines here
    could arguably be said to be inadequate” with regard to fentanyl “because of its increased
    prevalence here but more importantly how fatal it is.” J.A. 29–30. In the court’s view,
    “[n]either Congress [n]or the sentencing commission has caught up to what that substance
    is and what it does. And if I could be so frank to say it, perhaps they don’t have the
    appreciation for the scope of that problem here in our communities and here, again, on the
    ground.” J.A. 30–31.
    After spending nearly 50 minutes calculating Roy’s Guidelines range, hearing input
    from each party, and providing a lengthy explanation for the upward variance, the district
    court sentenced Roy to 120 months’ imprisonment and 5 years of supervised release. While
    the court noted that an upward variance was “something I don’t do lightly or undertake
    lightly,” it found that the Guidelines range was inadequate because of the “shocking
    amount” of fentanyl at issue and the drug’s “toxicity and ability to kill in such small doses.”
    J.A. 47. The court observed that the amount of fentanyl was the most that he had seen in
    his time on the bench, and that it likely had the potential to kill thousands if not tens of
    thousands of people. After referencing the sentencing factors contained in 
    18 U.S.C. § 3553
    (a), the court found its sentence to be “sufficient to adequately but not excessively
    punish Mr. Roy for the seriousness of the offense behavior in this case.” J.A. 47.
    C.
    Despite having waived his right to appeal his sentence, Roy appealed. His counsel
    filed an Anders brief to this court—the process by which a criminal defense counsel moves
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    to withdraw from his client’s appeal because he believes it does not present a nonfrivolous
    legal claim. See Anders v. California, 
    386 U.S. 738
     (1967). The government agreed that
    the appeal did not raise any meritorious issues and did not file a response brief. We
    concluded, however, that the appeal presented issues that would benefit from adversarial
    presentation. We thus directed supplemental briefing on “whether the district court
    procedurally erred in relying on two facts that were either clearly erroneous or outside the
    record at sentencing—namely, that Roy possessed a firearm in connection with the drug
    possession offense and that fentanyl is so potent that it can cause one who simply touches
    it to overdose.”
    II.
    In his supplemental brief, Roy contends that the court made statements during the
    sentencing hearing that show it relied on facts that were clearly erroneous or outside the
    record. Specifically, he claims that the court erred in expressing beliefs that (1) fentanyl is
    dangerous to touch, (2) the fentanyl offense and firearm offense were connected, and
    (3) Roy possessed multiple firearms. Roy first cites two statements that the district court
    made which indicated its belief that fentanyl is dangerous to touch. The court said:
    I can’t get over a conversation I had with a law enforcement officer in
    connection with [a previous] case who, during a break in the trial, cautioned
    me against touching the bag of fentanyl that was sitting there. I ha[d] never
    seen fentanyl before. I have led a shockingly sheltered life; one that I am not
    thankful enough and appreciative enough for every day. So dumbly curious,
    I remember touching this bag of fentanyl that had been admitted into
    evidence. And that law enforcement officer came over and cautioned me
    against touching it, and was telling me stories of law enforcement officers
    merely brushing their hands against pants after they took their gloves off at
    a crime scene and having to be taken to the hospital for overdose reactions.
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    That’s anecdotal and all of that, but I don’t think anyone here is arguing or
    would contest the toxicity of fentanyl and how, again, fatal it is.
    J.A. 30.
    The court went on to say:
    I just don’t think folks have an appreciation for how lethal it is. . . . [T]he
    body count [from] fentanyl keeps stacking up—not even in cases that we see.
    Just turn the news on. Read the newspaper. It’s terrifying. And it’s not even—
    like I said, it’s not even a substance that you need to go out of your way to
    procure, and inject, consume, smoke, whatever. If you come in contact with
    it, it can kill you.
    J.A. 35.
    Next, Roy claims the court made two statements that impermissibly drew a
    connection between the fentanyl Roy transported and the firearm he possessed. Roy
    also takes issue with the court referring to multiple “firearms” in these statements
    because Roy only possessed a single firearm. The court stated:
    [T]he quantities we are talking about, the firearms, the amount, again, that
    we are dealing with, this wasn’t feeding your addiction. You will never
    convince me otherwise. Most addicts aren’t armed. They are just looking to
    score. They are looking to score their next dose. This was a business for you,
    and that is apparent just on its face. . . . [Y]ou will never convince me
    otherwise that your involvement here was anything less than trafficking. It
    clearly was given, again, the amount, the presence of firearms, and the rest.
    J.A. 37.
    Later, when explaining its sentencing decision, the court said:
    The Court is also struck in particular [by], again as reflected in [the unlawful
    possession of a firearm case], the presence of firearms here, which indicates
    a couple things to this Court: one, instantaneous danger that was injected in
    Mr. Roy’s activities in connection with his criminal undertaking in these two
    cases. The Court is struck by the amount of fentanyl that we are talking about
    and the presence of the firearm, or firearms as the case may be, noting that
    each independently can be lethal.
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    J.A. 47.
    III.
    Citing these four statements, Roy argues that his sentence was procedurally
    unreasonable because the district court’s upward variance was based on clearly erroneous
    facts or evidence outside the record. He contends that the district court’s improper reliance
    on this evidence requires us to remand his case for resentencing. Because we find that the
    district court’s sentence was not based on clearly erroneous facts or evidence outside the
    record, we affirm the judgment below.
    A.
    Some brief background is in order. A sentence must be procedurally reasonable.
    United States v. Lynn, 
    592 F.3d 572
    , 575 (4th Cir. 2010) (citing Gall v. United States, 
    552 U.S. 38
    , 51 (2007)). We review a challenge to a sentence’s procedural reasonableness by
    applying a “deferential abuse-of-discretion standard.” United States v. McCain, 
    974 F.3d 506
    , 515 (4th Cir. 2020) (quoting Gall, 
    552 U.S. at 41
    ). Under this standard, we must
    ensure that the district court did not commit a “significant procedural error.” Gall, 
    552 U.S. at 51
    . It is a significant procedural error for a court to “select[] a sentence based on clearly
    erroneous facts.” 
    Id.
     Other significant procedural errors include failing to properly
    calculate the applicable Guidelines range, “failing to consider the § 3553(a) factors,” and
    “failing to adequately explain the chosen sentence.” Id. In explaining the sentence, the
    court must “place on the record an ‘individualized assessment’ based on the particular facts
    of the case before it.” United States v. Carter, 
    564 F.3d 325
    , 330 (4th Cir. 2009) (quoting
    Gall, 
    552 U.S. at 50
    ). If we find the district court abused its discretion by committing a
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    significant procedural error, we reverse for resentencing unless we conclude the error was
    harmless. Lynn, 
    592 F.3d at 576
    ; United States v. Hargrove, 
    701 F.3d 156
    , 161 (4th Cir.
    2012).
    A district court may also not “impose a sentence above the statutory maximum
    based on a fact, other than a prior conviction, not found by a jury or admitted by the
    defendant.” Cunningham v. California, 
    549 U.S. 270
    , 275 (2007) (citing Apprendi v. New
    Jersey, 
    530 U.S. 466
     (2000); Ring v. Arizona, 
    536 U.S. 584
     (2002); Blakely v. Washington,
    
    542 U.S. 296
     (2004); and United States v. Booker, 
    543 U.S. 220
     (2005)). That said, a
    district court may reference information from outside the record at sentencing so long as
    the court does not rely on such extrinsic information in its sentencing determination. See
    United States v. 
    Thompson, 864
     F.3d 837, 842 (7th Cir. 2017); United States v. Meyer, 
    790 F.3d 781
    , 783 (8th Cir. 2015); United States v. Lisenberry, 
    866 F.3d 934
    , 937 (8th Cir.
    2017) (per curiam). Indeed, the Guidelines state that, at sentencing, a “court may consider
    relevant information without regard to its admissibility under the rules of evidence
    applicable at trial, provided that the information has sufficient indicia of reliability to
    support its probable accuracy.” U.S.S.G. § 6A1.3(a). A district court may also draw
    reasonable inferences from the facts in the record when formulating a sentence. See, e.g.,
    United States v. Parrish, 
    915 F.3d 1043
    , 1048 (6th Cir. 2019); United States v. Orozco-
    Acosta, 
    607 F.3d 1156
    , 1166 (9th Cir. 2010); United States v. Caldwell, 
    448 F.3d 287
    , 290
    (5th Cir. 2006).
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    With this background in mind, we analyze Roy’s three claims in turn to determine
    whether the district court here relied on clearly erroneous facts or those outside the record
    in its sentencing determination.
    B.
    The district court did not abuse its discretion in its discussion of fentanyl’s lethality
    during Roy’s sentencing hearing. Contrary to Roy’s contention, the court did not rest on
    clearly erroneous facts when it recounted a law enforcement officer’s warning that fentanyl
    is dangerous to touch and when it stated that “[i]f you come in contact with it, it can kill
    you.” J.A. 35. While the question of whether fentanyl is dangerous to touch is a matter of
    scientific debate, an answer in the affirmative was hardly so wrong as to constitute a
    “clearly erroneous fact[]” under Gall. 
    552 U.S. at 51
    .
    In a 2017 statement about the dangers of fentanyl exposure, then DEA Acting
    Administrator Chuck Rosenberg stated that fentanyl “is extremely dangerous to users and
    to those who simply come into contact with it.” DOJ, Roll Call Video Warns About
    Dangers of Fentanyl Exposure, YouTube (June 7, 2017). Administrator Rosenberg was
    unequivocal in his determination that “you can be in grave danger if you unintentionally
    come into contact with fentanyl.” 
    Id.
     He noted that fentanyl can be absorbed into the
    bloodstream through one’s skin or mucous membranes, by touching one’s mouth, nose, or
    eyes after exposure, or by breathing tiny amounts of airborne powder. The CDC’s National
    Institute for Occupational Safety and Health (NIOSH), for its part, recommended that
    emergency responders in the presence of fentanyl wear respiratory protection and nitrile
    gloves. NIOSH, Fentanyl: Emergency Responders at Risk (Feb. 11, 2020). Referencing
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    reports from the CDC and other experts, a federal district court in West Virginia stated that
    “because fentanyl can be absorbed through the skin in some forms, fentanyl can be deadly
    if touched.” United States v. Walker, 
    423 F. Supp. 3d 281
    , 285 n. 24 (S.D. W.Va. 2017).
    On the other hand, reputable medical sources have disputed the position that
    fentanyl poses significant exposure risk to those who merely touch it. Wash. Dep’t of
    Health, Fentanyl Exposure in Public Places (Nov. 16, 2023) (“You can’t overdose just by
    touching fentanyl.”); Liam Connolly, Can Fentanyl Be Absorbed Through Your Skin, U.
    Cal. Davis Health (Oct. 18, 2022) (“It is a common misconception that fentanyl can be
    absorbed through the skin, but it is not true for casual exposure.”).
    The particular fact in question is thus a matter of dispute. But contested facts are
    hardly the same as clearly erroneous ones. The scientific dispute here indicates that, while
    expert opinions may differ, the court’s statements that fentanyl may be dangerous to the
    touch and can kill those who come into contact with it were not “clearly erroneous.” Gall,
    
    552 U.S. at 51
    .
    While the particular fact of fentanyl’s lethality to the touch may have been a matter
    of dispute, the district court’s larger point was ever so true. Far from constituting significant
    procedural error, it was eminently reasonable for the district court to consider fentanyl’s
    lethality and the devastating impact it has wrought upon communities across America. See
    
    18 U.S.C. § 3553
    (a) (stating that a sentence must reflect the seriousness of the offense,
    provide just punishment for the offense, and afford adequate deterrence). The nation is in
    the midst of a shockingly severe fentanyl crisis. U.S. drug overdose deaths rose over 400
    percent from 2001 to 2021, largely due to fentanyl’s rise as the nation’s most deadly drug.
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    See Merianne Rose Spencer et al., Drug Overdose Deaths in the United States, 2001–2021,
    Nat’l Ctr. for Health Stats. (Dec. 21, 2022). By 2021, over two-thirds of U.S. drug overdose
    deaths involved fentanyl and similar synthetic opioids, with these drugs causing nearly 23
    times the number of overdose deaths in 2021 than they did in 2013. CDC, Opioid Overdose
    (Aug. 23, 2023). More than 109,000 people died from drug overdoses in the United States
    in 2022—the most ever in a single year. Farida B. Ahmad et al., Provisional Drug
    Overdose Death Counts, Nat’l Ctr. for Health Stats. (Nov. 15, 2023).
    And that is not all. As the district court was well aware, the fentanyl crisis had been
    particularly devastating to its home state of West Virginia. Fatal drug overdoses in the State
    increased over 70 percent from 2019 to 2021, reaching 1516 deaths that year. W. Va. Dep’t
    of Health and Hum. Res., Drug Overdose Mortality (Nov. 16, 2023). Fentanyl overdoses
    were responsible for most of this alarming increase. See 
    id.
     Seventy-six percent of West
    Virginia overdose deaths in 2021 involved fentanyl, with fentanyl-involved deaths more
    than doubling since 2019. 
    Id.
    As § 3553(a) attests, sentencing has many facets. The very number of factors
    bearing upon the sentencing function affords trial courts latitude in discussing and applying
    their decisions. A trial court can be instructional. In fact, it can be beneficial for a defendant
    to hear straight from a judge why he is being punished and what he might do to turn his
    life around. See Chavez-Meza v. United States, 
    138 S. Ct. 1959
    , 1967 (2018). District courts
    are also permitted to give voice to the ills faced by the communities in which they sit. In
    this case, the court was well within its discretion to emphasize the dangerousness of
    fentanyl when ensuring that the sentence reflected the seriousness of the offense, provided
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    just punishment, and served as an adequate deterrent to future criminal conduct. See 
    18 U.S.C. § 3553
    (a). Our court has rightly required district courts to explain their sentencing
    decisions. See, e.g., Carter, 
    564 F.3d at 330
    . This the trial court did here. It will not do for
    us to apply a myopic pick to explanations that we ourselves have rightly encouraged.
    Finally, we are not persuaded that the district court even relied on the statements in
    question when fashioning Roy’s sentence. When it recounted the “stories” it had heard
    from a law enforcement officer about the risks of touching fentanyl, the court stated they
    were “anecdotal” and clarified that it was referencing them in support of its larger and
    undisputed point regarding “the toxicity of fentanyl,” namely, “how . . . fatal it is.” J.A. 30.
    Viewing the transcript as a whole, it was this latter fact—the lethality of fentanyl—that
    informed the district court’s decision to vary upwards from the Guidelines.
    In sum, for all the reasons recounted, we find no procedural error in the statements
    discussed above.
    C.
    Roy next claims that the district court’s statements drawing a connection between
    the fentanyl offense and the firearm offense were erroneous and not based on the record
    because the two offenses occurred ten days apart and Roy did not have a firearm on him
    while driving the fentanyl to West Virginia. But the presentence report found that the two
    cases were “connected by a common criminal objective or constitut[ed] part of a common
    scheme or plan.” J.A. 80.
    A district court may “accept any undisputed portion of the presentence report as a
    finding of fact.” Fed. R. Crim. P. 32(i)(3)(A). Because Roy, whether for strategic purposes
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    or other reasons, did not object to the presentence report when explicitly asked at the
    sentencing hearing, he conceded that the fentanyl offense and the firearm offense were
    “connected by a common criminal objective” or “constitut[ed] part of a common scheme
    or plan.” J.A. 80. It was again within the court’s discretion to “adopt the[se] findings . . .
    without more specific inquiry or explanation.” United States v. Terry, 
    916 F.2d 157
    , 162
    (4th Cir. 1990) (quoting United States v. Mueller, 
    902 F.2d 336
    , 346 (5th Cir. 1990)).
    Viewed in this context, the district court’s statements drawing a connection between
    the two offenses constituted a permissible reliance on facts within the record. Observing
    that the plea agreement stemmed from “two cases,” the district court expressly adopted the
    findings of the presentence report and subsequently used them to connect “the amount of
    fentanyl that we are talking about and the presence of the firearm.” J.A. 47. The district
    court did not clearly err in drawing this connection.
    D.
    Roy also takes issue with the district court’s having referenced the presence of
    “firearms” when Roy pleaded guilty to possessing only a single firearm. This was at most
    a harmless error. The district court exhibited a detailed understanding of the facts of the
    case throughout the 75-minute-long sentencing hearing. The court correctly stated that Roy
    had pleaded guilty to a single drug offense and a single offense of unlawful possession of
    a firearm, and it never claimed that the firearm offense involved more than one firearm or
    that the fentanyl offense involved any firearms. Near the beginning of the hearing, the court
    noted that Roy agreed to “forfeit all property encompassed in the forfeiture allegation . . .
    [i]n particular . . . a Strassell’s Machine, Inc., (Hi-Point) Colt pistol.” J.A. 21. The court
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    then confirmed with the government that there was no further contraband for Roy to forfeit
    other than the ammunition found alongside the pistol. The totality of the circumstances
    thus shows that the court’s passing references to “firearms” did not alter its understanding
    that Roy had possessed a single firearm.
    What’s more, any error caused by the references to “firearms” was harmless because
    the court did not rely on these references to increase Roy’s sentence. See United States v.
    Robinson, 
    460 F.3d 550
    , 557 (4th Cir. 2006); Fed. R. Crim. P. 52(a) (“Any error, defect,
    irregularity, or variance that does not affect substantial rights must be disregarded.”).
    Nothing in the court’s detailed explanation for its upward variance suggests that the
    sentence was influenced by a mistaken belief about the number of firearms involved.
    IV.
    For the foregoing reasons, the judgment of the district court is in all respects
    affirmed.
    AFFIRMED
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Document Info

Docket Number: 21-4312

Filed Date: 12/12/2023

Precedential Status: Precedential

Modified Date: 12/13/2023