United States v. Kendall Blue

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4215
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENDALL LADELL BLUE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Dever III,
Chief District Judge. (7:11-cr-00135-D-1)
Argued: December 10, 2014 Decided: March 13, 2015
Before SHEDD, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Robert Daniel Boyce, NEXSEN PRUET, Raleigh, North
Carolina, for Appellant. Phillip Anthony Rubin, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
ON BRIEF: Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Joshua L. Rogers, 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Unpublished opinions are not binding precedent in this circuit.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:
In 2010, an informant purchased crack cocaine from
Appellant–Defendant Kendall Blue on three occasions. Blue was
then indicted on four counts of knowingly and intentionally
distributing and possessing crack cocaine and two counts of
using a firearm in furtherance of those drug crimes. A jury
later found Blue guilty of the drug charges, but acquitted him
on the firearms charges.
On appeal, Blue challenges two evidentiary rulings: (i) the
denial of his motion to suppress evidence, and (ii) the
exclusion of the informant’s prior drug convictions, which Blue
offered for impeachment purposes. Blue also challenges his
sentence, contending that the district court erred in imposing
two sentencing enhancements and an upward departure. For the
reasons set forth below, we find these arguments are without
merit. Accordingly, we affirm the district court in all
respects.
I.
A.
In 2010, the Bureau of Alcohol, Tobacco, Firearms, and
Explosives (ATF) and the Robeson County Sheriff’s Department in
Lumberton, North Carolina initiated an investigation of
Appellant–Defendant Kendall Blue. During the investigation, the
2
ATF used a confidential informant—a friend of Blue’s who had
purchased drugs from him in the past—to make three controlled
purchases of crack cocaine from Blue.
According to testimony at trial, Blue would occasionally
(but not always) carry a gun while selling drugs. For example,
the informant testified that Blue had a handgun in a holster on
his hip during the second purchase. At the ATF’s request, the
informant also asked to purchase a gun from Blue during the
second purchase. Blue stated he could get the informant a gun,
but he did not have one for sale at that time.
During the third purchase, the informant asked Blue what
kind of gun he carried, and again asked whether Blue could get
him one. In response, Blue gave the informant a handgun, but
ultimately took it back without offering to sell it. The
informant then purchased a shotgun from another individual who
was in Blue’s garage during the drug deal. The informant did
not, however, purchase a firearm from Blue. The informant also
testified that he never felt threatened by Blue’s gun.
On September 28, 2011, three ATF agents met with Blue
outside his residence. The parties dispute what happened at
this meeting. The ATF agents testified that Blue voluntarily
entered the agents’ vehicle, admitted to selling cocaine, and
then gave them permission to search his car for firearms, where
they found two handguns and an assault rifle. In contrast, Blue
3
alleges that he believed he was in custody upon entering the
car, that he was not free to leave, that he was questioned and
frisked without being read his Miranda rights, and that he did
not give the agents permission to search his car.
B.
On October 25, 2011, a grand jury returned a six-count
indictment, charging Blue with conspiring to distribute at least
50 grams of crack cocaine (Count One); twice distributing at
least 50 grams of crack cocaine (Counts Two and Three);
possessing a firearm in furtherance of the drug trafficking
crime charged in Count Three (Count Four); distributing at least
five grams of crack cocaine (Count Five); and possessing a
firearm in furtherance of the drug trafficking crime charged in
Count Five (Count Six).
On August 2, 2012—nearly eight months after the deadline to
file pre-trial motions and only four days before trial—Blue
filed a motion to suppress his statements made during the
encounter with the ATF agents outside of his home. In the
motion, Blue contended that the ATF agents did not advise him of
his constitutional rights to an attorney and to remain silent.
He further contended that the agents searched his car and seized
the weapons without his permission.
4
At the beginning of the trial, Blue’s attorney requested
that the district court rule on the motion to suppress. The
district court denied the motion on procedural grounds as
untimely under Rule 12 of the Federal Rules of Criminal
Procedure. The district court also noted that it would deny the
motion on the merits even if the motion were timely. The
district court further suggested that, in the event Blue was
ultimately found guilty, the government should consider seeking
an obstruction-of-justice sentencing enhancement based on his
statements in the motion.
Notwithstanding the district court’s ruling, Blue’s
attorney then proffered an affidavit in support of the motion.
Although Blue’s attorney stated that he understood the court’s
ruling, he asked to submit the affidavit “just . . . to complete
the record.” J.A. 38. In the affidavit, Blue swore that he was
not read his “Miranda rights” during his encounter with the ATF
agents; that he believed he was in custody during the encounter;
and that he “did not give agents permission to seize the
firearms in the car.” S.J.A. 615-16. The district court later
found that these statements were “directly contradicted” by the
ATF agents’ testimony. J.A. 512.
5
C.
After the court denied Blue’s suppression motion, the
parties proceeded to trial. During trial, Blue’s attorney
sought to impeach the informant’s credibility by questioning the
informant about his prior convictions for larceny and possession
of cocaine with intent to deliver. The government’s counsel
objected, arguing that the convictions were inadmissible under
Rule 609 of the Federal Rules of Evidence and United States v.
Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), because Blue
failed to establish that the confidential informant was
convicted of felonies that were punishable by more than a year
in prison. Blue’s counsel admitted that he did not know the
potential maximum sentences under North Carolina law for the
cocaine convictions, but suggested that Simmons may not apply in
the context of determining admissibility under Rule 609. 1
The district court overruled the government’s objection as
to the larceny conviction, finding it admissible under Rule
609(a)(2) because the conviction was relevant to the element of
1
In Simmons, we addressed whether a prior state-law
conviction constituted a “felony drug offense” warranting
sentencing enhancements under the Controlled Substances Act.
649 F.3d at 239-40. In making this inquiry, we held that courts
must look to the actual sentence the defendant could have
received–not the maximum sentence a hypothetical defendant could
have received under North Carolina law for the same conviction.
Id. at 244-45. In doing so, we overruled circuit precedent
holding that the hypothetical sentence controlled. Id. at 245-
47.
6
dishonesty. The court sustained the objection as to the cocaine
convictions, however, finding they were inadmissible under Rule
609(a)(1) because Blue failed to show that the informant could
have been sentenced to more than one year in prison.
On August 7, 2012, the jury convicted Blue of the four drug
offenses and acquitted him of the two firearms offenses.
D.
Blue’s presentence investigation report (PSR) recommended
several sentencing enhancements, two of which are relevant here.
First, the PSR recommended a two-level enhancement under
U.S.S.G. § 2D1.1(b)(1) for possessing a firearm in connection
with Blue’s drug trafficking activities. Second, the PSR
recommended a two-level enhancement under U.S.S.G. § 3C1.1 for
obstructing or impeding the administration of justice. In
support, the PSR concluded that Blue lied in his affidavit when
he described his encounter with the ATF agents. The PSR
calculated Blue’s total offense level as 42, which, combined
with a Criminal History Category of II, yielded an advisory
guidelines range of 360 to 480 months’ imprisonment for Counts
One through Three, and 240 months’ imprisonment for Count Five,
to run concurrently.
Blue objected to both enhancements. First, he claimed that
the jury’s verdict acquitting him of the firearms charges
7
precluded application of the two-level enhancement for
possession of a dangerous weapon. Second, he asserted that his
affidavit did not provide materially false information to the
court, thus barring any enhancement for obstructing the
administration of justice.
At sentencing, the district court overruled Blue’s
objections to both enhancements. The court did, however,
sustain several of Blue’s other objections (none of which are
relevant to this appeal) and then calculated Blue’s total
offense level as 36. The court also granted a one-level upward
departure to Blue’s Criminal History Category based on the
duration of Blue’s criminal drug activity (dating back to at
least 2003 according to testimony by the informant) and his
possession of a firearm in connection with the drug offenses,
moving him from a Category I to a Category II. 2 The district
court then sentenced Blue to 252 months’ imprisonment on Counts
One, Two and Three, and 240 months’ imprisonment on Count Five,
to run concurrently. Blue now appeals.
2
The PSR calculated Blue’s criminal history as a Category
II. Approximately one week before the sentencing hearing, the
district court gave notice to the parties that it would consider
an upward departure. At sentencing, the district court
sustained Blue’s objection to the PSR’s inclusion of one of his
prior convictions, which reduced his Criminal History Category
from a II to a I. Later in the sentencing hearing, however, the
district court granted an upward departure, raising Blue’s
Criminal History Category back to a II.
8
II.
A.
Blue first contends that the district court erred in
denying his motion to suppress without holding an evidentiary
hearing. We review a district court’s denial of an untimely
motion to suppress for clear error. United States v. Sweat, 573
F. App’x 292, 295 (4th Cir. 2014) (citing United States v. Ruhe,
191 F.3d 376, 385 (4th Cir. 1999)).
Under Rule 12 of the Federal Rules of Criminal Procedure,
the moving party must file a motion to suppress either before
trial or by the deadline established by the district court.
Fed. R. Crim. P. 12(b)(3)(C), 12(c)(1). The failure to file
such a motion by the specified pretrial deadline operates as a
waiver unless the court finds “good cause” for the delay. Fed.
R. Crim. P. 12(c)(3); see also United States v. Moore, 769 F.3d
264, 267-68 (4th Cir. 2014) (affirming ruling that defendant’s
untimely motion to suppress was waived); Sweat, 573 F. App’x at
295 (noting that “we rarely grant relief from the denial of an
untimely suppression motion”).
Blue does not argue that he had good cause for filing his
motion nearly eight months after the court-ordered deadline. He
notes only that multiple attorneys represented him throughout
this lawsuit, and suggests that his current attorneys would have
timely filed the motion if they had represented him before the
9
deadline. Blue does not, however, assert that his prior counsel
rendered ineffective assistance. Nor does he deny that the
information contained in his motion to suppress was known to him
since at least September 28, 2011, the date of his meeting with
the ATF agents. With this information, Blue’s original
attorneys could have filed the motion to suppress before the
December 8, 2011 court-ordered deadline. But they did not.
Under these circumstances, the district court did not clearly
err in refusing to entertain the motion. See Ruhe, 191 F.3d at
386-87 (holding that good cause typically exists when a
defendant does not know the basis for the motion until after the
time for such a motion had expired); United States v. Chavez,
902 F.2d 259, 263 (4th Cir. 1990) (observing that courts will
generally deny untimely suppression motions where the defendant
proffers only a “dubious excuse” for missing the court-imposed
deadline).
B.
Blue next challenges the district court’s exclusion of the
informant’s prior convictions for possession and sale of
cocaine, which Blue offered for impeachment purposes.
We review the district court’s evidentiary rulings for
abuse of discretion, which occurs only when the district court’s
decision is guided by erroneous legal principles or rests upon a
10
clearly erroneous factual finding. United States v. Thomas, 669
F.3d 421, 427 (4th Cir. 2012). Further, evidentiary rulings are
subject to harmless error review, such that any error is
harmless where we may say “with fair assurance, after pondering
all that happened without stripping the erroneous action from
the whole, that the judgment was not substantially swayed by the
error.” United States v. Cone, 714 F.3d 197, 219 (4th Cir.
2013) (quoting United States v. Johnson, 617 F.3d 286, 292 (4th
Cir. 2010)).
The district court determined that the informant’s prior
convictions were inadmissible under Rule 609 of the Federal
Rules of Evidence. Under that Rule, a party may use a prior
conviction to impeach a witness’s credibility if (among other
requirements) the crime for which the witness was convicted “was
punishable . . . by imprisonment for more than one year” in “the
convicting jurisdiction.” Fed. R. Evid. 609(a)(1) (emphasis
added). As the party seeking admission of the evidence, Blue
has the burden to demonstrate that the informant’s prior cocaine
convictions were each punishable “by imprisonment for more than
one year” under North Carolina law. United States v.
Cunningham, 638 F.2d 696, 697 (4th Cir. 1981).
At trial, Blue’s counsel conceded that the informant was
sentenced to only “eight to ten months” for his prior cocaine
convictions. J.A. 197. Blue’s counsel also expressly admitted
11
that he did not know the potential maximum sentences under North
Carolina law for the cocaine convictions. Citing Simmons, the
district court concluded that the relevant inquiry for Rule 609
purposes was the maximum sentence the informant could have
received–not the maximum sentence a hypothetical defendant could
have received under North Carolina law for the same conviction.
Accordingly, the district court held that the informant’s prior
convictions were for less than one year, and so were
inadmissible.
The parties now dispute whether Simmons governs the Rule
609(a)(1) analysis. 3 We need not decide this issue, however,
because Blue has failed to demonstrate that the informant’s
convictions satisfy Rule 609 regardless of whether Simmons
applies.
3
As Blue correctly notes, Simmons addressed whether a prior
state conviction for marijuana possession constituted a prior
“felony drug offense” warranting sentencing enhancements under
the Controlled Substances Act (CSA). 649 F.3d at 239. It did
not address the standard for determining whether a state law
conviction is admissible under Rule 609. On the other hand, the
government rightfully points out that the relevant language in
Rule 609(a)(1) is virtually identical to that of the CSA.
Compare Fed. R. Evid. 609 (a)(1) (requiring admission of prior
convictions that, “in the convicting jurisdiction,” were
“punishable . . . by imprisonment for more than one year”) with
21 U.S.C. § 802(44) (defining a “felony drug offense” as one
“that is punishable by imprisonment for more than one year under
any law . . . of a State”). Neither side points to any binding
precedent supporting their respective positions. Regardless,
for the reasons set forth above, we decline to decide this issue
here.
12
On appeal, Blue’s counsel asserts that the potential
maximum sentence for the cocaine convictions was greater than
twelve months, which would satisfy Rule 609)(a)(1), assuming
Simmons does not apply. But Blue did not make this argument
during trial. Rather, he expressly conceded that he did not
know the potential maximum sentence for the informant’s cocaine
convictions. J.A. at 197 (Blue’s counsel conceded that “[t]he
sentence was eight to ten months” but that he did not “know what
the penalty that he could have received was” (emphasis added)). 4
He also did not cite the applicable North Carolina statutes
governing the informant’s convictions. 5 As such, even if we
accept his contention that Simmons does not apply here, Blue
still did not meet his burden of proving that the informant’s
prior cocaine convictions were punishable by imprisonment for
4
During voir dire, Blue’s counsel asked the informant
whether his convictions carried a punishment of more than one
year, and the informant replied that they did. But on cross-
examination, government’s counsel asked the informant whether he
knew what Blue’s counsel meant when he asked him that question.
The informant replied “[n]o, not really” and stated he received
only probation for the convictions. J.A. 218. This is far from
“concrete proof” that the informant had been convicted of a
crime punishable by more than one year. United States v.
Meserve, 271 F.3d 314, 328 (1st Cir. 2001).
5
Blue did not cite the statutes setting forth the maximum
sentences for the informant’s prior cocaine convictions (see
N.C. Gen. Stat. §§ 90-90; 90-95) until two days after oral
argument on this appeal, when he filed a notice of supplemental
authority. Of course, this filing came far too late to satisfy
Blue’s obligation to provide this information in the district
court proceeding.
13
more than one year. See Cunningham, 638 F.2d at 697-98;
Meserve, 271 F.3d at 327-28 (finding that the “party seeking to
introduce evidence of a prior conviction for impeachment
purposes under Rule 609 was obligated to have researched [the
witness’s] prior offenses and to have determined that they were
admissible”). Accordingly, the district court did not abuse its
discretion by declining to admit evidence of the informant’s
prior cocaine convictions.
Even if the district court did err by applying Simmons to
Rule 609, we conclude that any such error was harmless. The
government produced substantial evidence of Blue’s guilt,
including video and audio recordings of the cocaine purchases
taken from equipment worn by the informant, the actual crack
cocaine purchased by the informant, the testimony of several
witnesses regarding Blue’s long history of drug dealing, and
Blue’s own admission to the ATF agents that he sold cocaine.
The district court’s refusal to allow Blue to impeach the
informant with the cocaine convictions did not undermine any of
this evidence.
In addition, the district court allowed Blue to ask the
informant about the informant’s prior larceny conviction, as
well as whether the informant had prior convictions waived in
exchange for cooperation with the government. Blue thus had
several opportunities to impeach the informant. We are
14
satisfied that Blue’s inability to also question the informant
regarding his prior cocaine convictions did not “substantially
sway[]” the jury’s verdict. Cone, 714 F.3d at 219.
III.
We now turn to Blue’s sentence. “[W]e review the district
court’s sentencing procedure for abuse of discretion, and must
reverse if we find error, unless we can conclude that the error
was harmless.” United States v. Gomez-Jimenez, 750 F.3d 370,
379 (4th Cir. 2014) (citation omitted). In determining whether
the district court properly applied the Sentencing Guidelines
(“Guidelines”), we “review the district court’s legal
conclusions de novo and its factual findings for clear error.”
Id. at 379–80 (citation and internal quotations omitted).
A.
Blue first argues that the district court improperly
applied the sentencing enhancement for obstruction of justice.
The Guidelines provide for a two-level enhancement when “the
defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice with respect
to the . . . sentencing of the instant offense of conviction.”
U.S.S.G. § 3C1.1. Examples of covered conduct include providing
“materially false information to a judge.” Id. § 3C1.1 cmt.
15
n.4(F). Information is materially false when, if believed, it
“would tend to influence or affect the issue under
determination.” Id. § 3C1.1 cmt. n.6. As we have previously
held, the obstruction enhancement is warranted when a defendant
lies in a suppression hearing regarding whether police
administered a Miranda warning. United States v. Bonsu, 291 F.
App’x 505, 515 (4th Cir. 2008) (per curiam).
Here, the district court concluded that Blue “willfully
lied about a material matter” in his affidavit when he swore
that the ATF agents placed him in custody without reading him
his Miranda rights and failed to obtain his permission to search
his car. J.A. 514. On appeal, Blue does not contest the
district court’s conclusion that he lied in his affidavit.
Rather, he asserts that the obstruction enhancement should not
apply because he only submitted his affidavit as a proffer under
Rule 103(a)(2) of the Federal Rules of Evidence to preserve the
suppression issue for appeal. 6 In essence, Blue contends that
the obstruction enhancement should not apply because he directed
his lies to this Court, rather than to the district court.
Unsurprisingly, we reject this reasoning.
6
Blue did not make this argument below. Rather, he
contended only that his affidavit was truthful. At the
sentencing hearing the district court concluded he lied in the
affidavit, and Blue does not contest this finding on appeal.
16
Offers of proof under Rule 103(a)(2) serve at least two
purposes: (i) to permit the district court to “reevaluate” or
“reconsider” its ruling; and (ii) to provide a record from which
an appellate court can determine whether the district court
erred and whether the error requires reversal. See 21 Wright &
Miller, Federal Practice and Procedure § 5040 (2d ed. 1977);
United States v. Yarrington, 634 F.3d 440, 447 (8th Cir. 2011).
Regardless of which purpose the movant has in mind, the ultimate
goal is the same: to persuade either the trial judge or the
appellate panel to rule in the movant’s favor. It simply makes
no difference whether Blue submitted the affidavit in an attempt
to change the district court’s mind or to make the record for
appeal: either way, he provided “materially false information to
a judge.” U.S.S.G. § 3C1.1 cmt. n.4(F). 7 Accordingly, we
conclude that the affidavit justifies the district court’s
imposition of the two-level obstruction enhancement. 8
7
Notably, Application Note 4(F) does not distinguish
between district and appellate judges.
8
Of course, a proffer under Rule 103 intended to preserve
an issue for appeal will not always lead to an obstruction
enhancement. For example, here Blue could have argued on appeal
that the district court erred in concluding that he lied in the
affidavit. He also could have argued that the district court
erred in concluded he lied without affording him an opportunity
to cross-examine the ATF agents regarding their September 28,
2011 meeting. Assuming arguendo that we agreed, we would have
reversed the obstruction enhancement. Rather than make these
arguments, however, Blue asserted only that an evidentiary
proffer intended to preserve an issue for appeal can never serve
(Continued)
17
B.
Blue next argues that the district court improperly applied
a sentencing enhancement for possession of a dangerous weapon in
connection with his drug trafficking offenses. Under U.S.S.G.
§ 2D1.1(b)(1), a two-level enhancement should be applied “[i]f a
dangerous weapon (including a firearm) was possessed.” This
“enhancement should be applied if the weapon was present, unless
it is clearly improbable that the weapon was connected with the
offense.” Id. § 2D1.1 cmt. n.11(A) (emphasis added). Again, we
conclude that the district court did not err in applying this
enhancement.
Blue contends his acquittal on the firearms charges
prohibited the district court from applying this enhancement.
But it is well-settled that a sentencing court may consider
acquitted conduct as long as the conduct is established by a
preponderance of the evidence. See United States v. Watts, 519
U.S. 148, 154 (1997); United States v. Lawing, 703 F.3d 229, 241
(4th Cir. 2012). Notwithstanding Blue’s acquittal on the
firearms charges, we conclude that the district court did not
err in determining by a preponderance of the evidence that Blue
possessed a firearm in connection with his drug offenses. The
as a grounds for an obstruction enhancement. For the reasons
set forth above, we decline to adopt this sweeping rule.
18
trial testimony conclusively established that Blue possessed a
handgun on his person during the second and third drug
purchases. Witnesses also testified that the handgun could be
used to protect the drug proceeds or deter theft during the
purchases. This evidence warranted application of the weapons
enhancement under § 2D1.1(b)(1). See United States v. Manigan,
592 F.3d 621, 629 (4th Cir. 2010) (stating that a § 2D1.1(b)(1)
weapons enhancement is appropriate when a firearm's “location
makes it readily available to protect either the participants
themselves during the commission of the illegal activity or the
drugs and cash involved in the drug business” (citation and
internal quotations omitted)). 9
C.
Finally, Blue contends the district court erred in granting
the government’s motion for an upward departure. An upward
departure may be warranted if “reliable information indicates
9
Blue contends that Manigan is inapposite because, unlike
here, evidence in that case demonstrated that the firearms
presented a real risk or threat of violence. We reject this
limited reading. Manigan also held that a firearm will be
considered sufficiently connected to a drug offense when it is
“readily available to protect” the participants in the deal.
592 F.3d at 629. Here, the evidence demonstrated that Blue had
a handgun on his person during both the second and third drug
purchases. The district court did not clearly err in finding
that this evidence demonstrated that Blue may have used the
handgun for protection during the drug purchases.
19
that the defendant’s criminal history category substantially
under-represents the seriousness of the defendant’s criminal
history or the likelihood that the defendant will commit other
crimes.” U.S.S.G. § 4A1.3(a)(1). “When reviewing a departure,
we consider whether the sentencing court acted reasonably both
with respect to its decision to impose such a sentence and with
respect to the extent of the divergence from the sentencing
range.” United States v. Howard, 773 F.3d 519, 529 (4th Cir.
2014) (citation omitted).
At sentencing, the district court concluded that Blue’s
Criminal History Category was a level I based on his prior
conviction for possession of marijuana, for which he received no
term of imprisonment. See U.S.S.G. § 4A1.1(c). The government
then moved for an upward departure to a level VI, claiming a
level I substantially under-represented Blue’s criminal history
and the likelihood he would commit other crimes upon release.
See id. § 4A1.3(a)(1). The district judge refused to go all the
way to level VI, but did grant a one-level departure to level
II. In doing so, the district court noted that, according to
testimony by the informant that the district court found
credible, Blue had dealt crack for almost a decade.
On appeal, Blue makes two arguments in support of his
contention that the district court erred in granting an upward
departure. First, he contends that the district court’s
20
February 25, 2013 order giving notice of a possible departure
from the Sentencing Guidelines was deficient under Rule 32(h) of
the Federal Rules of Criminal Procedure. According to Blue,
this “boilerplate notice” deprived him of an opportunity to
adequately prepare a defense to the court’s contemplated upward
departure.
Because Blue failed to object to the district court’s
allegedly inadequate notice below, we review for plain error.
See United States v. McClung, 483 F.3d 273, 276 (4th Cir. 2007).
“To establish error, the appealing party must show that an error
(1) was made, (2) is plain (i.e. clear or obvious), and
(3) affects substantial rights.” United States v. Lynn, 592
F.3d 572, 577 (4th Cir. 2010). The appealing defendant bears
the burden of showing plain error. United States v. Carthorne,
726 F.3d 503, 510 (4th Cir. 2013).
We conclude that Blue cannot satisfy even the first prong
of plain error analysis because the district court did not err
in the first instance. Federal Rule of Criminal Procedure 32(h)
only requires that an upward departure notice “specify any
ground on which the court is contemplating a departure.” The
district court’s notice plainly satisfied that Rule. The notice
stated that the court was contemplating an upward departure
because reliable information indicated that Blue’s criminal
history category substantially under-represented the seriousness
21
of his criminal history and the likelihood that Blue would
commit other crimes. The notice also cited the relevant
Sentencing Guideline, U.S.S.G. § 4A1.3(a)(2)(E), and several
Fourth Circuit decisions applying that Guideline. Blue thus had
sufficient notice to prepare his objections to the upward
departure. 10
Second, Blue asserts that the district court engaged in
impermissible double counting. “Double counting occurs when a
provision of the Guidelines is applied to increase punishment on
the basis of a consideration that has been accounted for by
application of another Guideline provision or by application of
a statute.” United States v. Reevey, 364 F.3d 151, 158 (4th
Cir. 2004) (citation omitted). As Blue acknowledges, “there is
a presumption that double counting is proper where not expressly
prohibited by the guidelines.” United States v. Hampton, 628
F.3d 654, 664 (4th Cir. 2010). Blue contends the basis for the
upward departure–his lengthy history of cocaine deals with the
10
In a notice of supplemental authority, Blue cites several
cases in other jurisdictions purportedly holding that a Rule
32(h) notice must provide both factual and legal grounds for a
contemplated departure. Even assuming we were bound by these
out-of-circuit cases, the notice was still appropriate because
it set forth both grounds. First, it provided the factual basis
by citing “the seriousness of defendant’s criminal history”—that
is, his drug dealing since at least 2003. D.E. 108. And
second, it provided the legal basis by citing the applicable
sentencing Guideline and several Fourth Circuit decisions
applying that Guideline.
22
informant dating back to at least 2003–was already accounted for
in his base offense level under the Guidelines. Blue thus
contends the district court double counted by again considering
this conduct as the basis for the upward departure.
Blue is mistaken. The PSR expressly states that in
determining Blue’s base offense level, the probation officer did
not consider the cocaine deals with the informant between 2003
and 2010. J.A. 598 (stating that the officer did not consider
these deals “[t]o avoid potential double-counting”). The PSR
also calculated Blue’s base offense level based on 26.74
kilograms of crack cocaine. This quantity excludes the
approximately 25 to 30 kilograms of crack Blue sold to the
informant between 2003 and 2010. Accordingly, these sales were
not accounted for in Blue’s base offense level or any other
Guidelines calculation. Because double counting occurs only
when a consideration has been fully accounted for in another
Sentencing Guidelines provision, United States v. Rivera-
Santana, 668 F.3d 95, 101-02 (4th Cir. 2012), the district court
did not double count. Accordingly, we affirm the district
court’s upward departure.
D.
Finally, even assuming that the district court erred in its
application of the Guidelines, we would still affirm because any
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error was harmless. A Guidelines error is harmless if we
determine that: (i) “the district court would have reached the
same result even if it had decided the guidelines issue the
other way,” and (ii) “the sentence would be reasonable even if
the guidelines issue had been decided in the defendant’s favor.”
Gomez-Jimenez, 750 F.3d at 382 (quoting United States v.
Savillon-Matute, 636 F.3d 119, 123 (4th Cir. 2011)). Both
prongs are satisfied here.
First, the district court made clear that it would have
imposed the same sentence even if it made an error in applying
the Guidelines. See J.A. 581. (“[I]f I have miscalculated the
advisory Guideline range or erroneously departed in some
fashion, under U.S. v. Keene . . . and U.S. v. Savillon-Matute
. . . I would impose this same sentence as a variant sentence
having fully considered and articulated the rationale under
[Section] 3553(a).”).
Second, the district court provided a thorough and
persuasive § 3553(a) analysis, carefully considering Blue’s
individual circumstances, prior criminal record, and the
likelihood he would commit future offenses. Accordingly, the
sentence was substantively reasonable. See United States v.
Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010) (in
determining whether a sentence is substantively reasonable, we
“examine[] the totality of the circumstances to see whether the
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sentencing court abused its discretion in concluding that the
sentence it chose satisfied the standards set forth in
§ 3553(a)”). Accordingly, we would affirm regardless of any
purported Guidelines error.
IV.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
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