US v. Kendall Blue

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:11-cr-00135-D-1. Copies to all parties and the district court/agency. [999545423]. [13-4215]

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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
In

2010,

an

informant

purchased

crack

cocaine

Appellant–Defendant Kendall Blue on three occasions.
then

indicted

distributing

on

four

and

counts

possessing

of

crack

knowingly
cocaine

and
and

from

Blue was

intentionally
two

counts

using a firearm in furtherance of those drug crimes.

of

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

Firearms,

and

respects.

I.
A.
In

2010,

the

Bureau

of

Alcohol,

Tobacco,

Explosives (ATF) and the Robeson County Sheriff’s Department in
Lumberton,

North

Carolina

initiated

Appellant–Defendant Kendall Blue.
2

an

investigation

of

During the investigation, the

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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,

outside his residence.
this meeting.

2011,

three

ATF

agents

met

with

Blue

The parties dispute what happened at

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.
3

In contrast, Blue

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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

possessing

a

of

crack

firearm

in

cocaine

(Counts

furtherance

of

the

Two

and

drug

Three);

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
filed

pre-trial
a

motion

motions
to

and

suppress

only
his

four

days

statements

before
made

trial—Blue
during

encounter with the ATF agents outside of his home.

the

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

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At the beginning of the trial, Blue’s attorney requested
that the district court rule on the motion to suppress.
district

court

denied

untimely

under

Rule

Procedure.
motion

on

the
12

motion

of

the

on

procedural

Federal

Rules

grounds
of

The
as

Criminal

The district court also noted that it would deny the
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

firearms in the car.”

give

agents

S.J.A. 615-16.

permission

to

seize

the

The district court later

found that these statements were “directly contradicted” by the
ATF agents’ testimony.

J.A. 512.

5

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C.
After
parties

the

court

proceeded

to

denied

Blue’s

trial.

suppression

During

trial,

motion,

Blue’s

the

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 24547.
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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.
the

First, he claimed that

jury’s

the

verdict

acquitting

him
7

of

firearms

charges

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precluded

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application

of

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the

two-level

possession of a dangerous weapon.

enhancement

for

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,

objections

to

both

the

district

court

enhancements.

The

overruled

court

did,

Blue’s
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

Criminal

to

Blue’s

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.
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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

Fed. R. Crim. P. 12(b)(3)(C), 12(c)(1).

the

district

court.

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
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Blue does not, however, assert that his prior counsel
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.
386-87

(holding

that

good

cause

See Ruhe, 191 F.3d at

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
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clearly erroneous factual finding.
F.3d 421, 427 (4th Cir. 2012).
subject

to

harmless

error

United States v. Thomas, 669

Further, evidentiary rulings are

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

Rules of Evidence.

under

Rule

609

of

the

Federal

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
added).

jurisdiction.”

Fed.

R.

Evid.

609(a)(1)

(emphasis

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
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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
because

Blue

convictions

has

We need not decide this issue, however,

failed

satisfy

Rule

to

demonstrate

609

regardless

that
of

the

informant’s

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.
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appeal,

Blue’s

counsel

Pg: 13 of 25

asserts

that

the

potential

maximum sentence for the cocaine convictions was greater than
twelve

months,

which

would

Simmons does not apply.
during trial.

satisfy

Rule

609)(a)(1),

assuming

But Blue did not make this argument

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

governing the informant’s convictions. 5

North

Carolina

statutes

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 crossexamination, 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.
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than

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one

year.

See

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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.
government

produced

substantial

evidence

of

Blue’s

The

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.
several

opportunities

to

impeach
14

the

Blue thus had

informant.

We

are

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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.”
15

Id. § 3C1.1 cmt.

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n.4(F).
“would

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Information is materially false when, if believed, it
tend

to

determination.”

influence

or

affect

Id. § 3C1.1 cmt. n.6.

the

issue

under

As we have previously

held, the obstruction enhancement is warranted when a defendant
lies

in

a

suppression

hearing

administered a Miranda warning.

regarding

whether

police

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.

district

J.A.

514.

court’s

On

appeal,

conclusion

that

Blue
he

does

lied

in

not
his

contest

the

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.
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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

erred and whether the error requires reversal.

district

court

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.”

conclude

U.S.S.G.
that

the

§ 3C1.1

affidavit

cmt.

n.4(F). 7

justifies

the

Accordingly,
district

we

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)
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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.
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trial testimony conclusively established that Blue possessed a
handgun

on

purchases.

his

person

during

the

second

and

third

drug

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.
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that

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the

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defendant’s

under-represents

the

Pg: 20 of 25

criminal

history

seriousness

of

category

the

substantially

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

range.”

the

extent

of

the

divergence

from

the

sentencing

United States v. Howard, 773 F.3d 519, 529 (4th Cir.

2014) (citation omitted).
At

sentencing,

Criminal

History

the

district

Category

was

court
level

a

concluded
I

based

that
on

Blue’s

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
20

that

the

district

court’s

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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.
this

“boilerplate

notice”

deprived

him

According to Blue,

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.

(3) affects substantial rights.”

clear

or

obvious),

and

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.
only

requires

that

an

Federal Rule of Criminal Procedure 32(h)
upward

departure

notice

“specify

ground on which the court is contemplating a departure.”
district court’s notice plainly satisfied that Rule.
stated
because

that

the

reliable

court

was

contemplating

information

indicated

an
that

any
The

The notice

upward
Blue’s

departure
criminal

history category substantially under-represented the seriousness
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of

his

commit

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criminal
other

Sentencing

history

crimes.

Guideline,

and

Pg: 22 of 25

The

the

likelihood

notice

U.S.S.G.

also

that

cited

sufficient

notice

to

prepare

the

§ 4A1.3(a)(2)(E),

Fourth Circuit decisions applying that Guideline.
his

objections

Blue

and

would

relevant
several

Blue thus had
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.
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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”).
also

calculated

kilograms

of

approximately

Blue’s

25

to

offense

cocaine.

crack

base

This

30

kilograms

informant between 2003 and 2010.

of

level

based

quantity
crack

Blue

The PSR
on

26.74

excludes
sold

to

the
the

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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harmless.

A

Pg: 24 of 25

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

Savillon-Matute,

F.3d

636

at

F.3d

382

119,

(quoting

123

(4th

United
Cir.

States

2011)).

v.
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.
advisory

See J.A. 581.

Guideline

range

(“[I]f I have miscalculated the

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

persuasive

§ 3553(a)

individual

circumstances,

court

analysis,
prior

provided

carefully

a

considering

criminal

likelihood he would commit future offenses.
sentence was substantively reasonable.
Mendoza-Mendoza,

597

F.3d

212,

216

thorough

record,

and

Blue’s

and

the

Accordingly, the

See United States v.
(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

§ 3553(a)”).

satisfied

the

standards

set

forth

in

Accordingly, we would affirm regardless of any

purported Guidelines error.

IV.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED

25