United States of America v. Byron Dale Whitaker

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4419
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BYRON DALE WHITAKER,
Defendant - Appellant.
No. 14-4435
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GREGORY DEVONTE ROBERTSON, a/k/a G-Call,
Defendant - Appellant.
No. 14-4641
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.

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ANDREW LEONARD LEAK,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:13-cr-00237-D-3; 5:13-cr-00237-D-4;
5:13-cr-00237-D-6)
Submitted: July 30, 2015 Decided: August 14, 2015
Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Ryan Willis, Drew Nelson, WILLIS JOHNSON & NELSON, PLLC,
Raleigh, North Carolina; Lynne Louise Reid, L.L. REID LAW,
Chapel Hill, North Carolina; Jennifer Haynes Rose, LAW OFFICE OF
JENNIFER HAYNES ROSE, Cary, North Carolina, for Appellants.
Thomas G. Walker, United States Attorney, Jennifer P. May-
Parker, Phillip A. Rubin, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Byron Dale Whitaker and Gregory Devonte Robertson pled
guilty to carrying and using a firearm during and in relation to
a drug trafficking offense. Andrew Leonard Leak pled guilty to
possessing cocaine with intent to distribute. Applying several
upward departure provisions of the Sentencing Guidelines, the
district court sentenced Whitaker to 480 months’ imprisonment,
Robertson to 262 months’ imprisonment, and Leak to 132 months’
imprisonment. The district court stated as to each individual
that whether or not its Guidelines calculations were erroneous,
it would have imposed the same sentences as upward variances.
On appeal, Whitaker argues that the district court improperly
considered his criminal history in determining his sentence, and
Robertson and Leak argue that certain upward departures were
improper. Whitaker and Leak also argue that the district court
failed to adequately explain their sentences. The Government
responds that the district court did not err and that even if it
did, that error is harmless because of the court’s statement
that it would have imposed the same sentences as variances in
each case had the Guidelines calculations been different. We
affirm.
Reviewing first Whitaker and Leak’s assertion that the
district court failed to adequately explain their sentences, we
conclude that this argument is without merit. The district

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court discussed in great detail throughout the sentencing
hearings the conduct of Appellants that took their cases far
from the heartland of the applicable Guidelines. The court also
discussed each Appellant’s unique background, offense and
relevant conduct, and postarrest actions, and how these facts
informed its application of the § 3553(a) factors. The district
court clearly provided “an ‘individualized assessment’ based on
the particular facts of the case before it [and] . . . a
rationale tailored to the particular case at hand and adequate
to permit ‘meaningful appellate review.’” United States v.
Carter, 564 F.3d 325, 330 (4th Cir. 2009) (footnote and citation
omitted) (quoting Gall v. United States, 552 U.S. 38, 50
(2007)).
As to the Appellants’ assertions of error in the upward
departures, “rather than review the merits of each of
[Appellants’] challenges, we may proceed directly to an assumed
error harmlessness inquiry.” United States v. Gomez-Jimenez,
750 F.3d 370, 382 (4th Cir.) (internal quotation marks omitted),
cert. denied, 135 S. Ct. 305 (2014). “A Guidelines error is
considered 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. (internal quotation marks omitted).

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In these cases, the district court unambiguously stated
that it would have imposed identical sentences as upward
variances even if the various departures were applied in error.
Thus, the first prong of the harmlessness inquiry is satisfied.
This Court’s review of “[s]ubstantive 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. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir 2010).
The district court correctly noted that these cases involved
heinous acts against others that significantly exceeded mere
brandishing and discharging a firearm, or possession with intent
to distribute drugs. Notably, none of the Appellants argue on
appeal that his sentence is substantively unreasonable. We
conclude that the totality of the circumstances in each case
support a conclusion that the district court did not abuse its
discretion in its sentencing determinations, and that
Appellants’ sentences are substantively reasonable. Thus, any
error in the district court’s upward departures is harmless.
Accordingly, we affirm the judgment of the district court.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED

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