US v. Byron Whitaker

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:13-cr-00237. Copies to all parties and the district court. [999640557]. [14-4419, 14-4435, 14-4641]

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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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. MayParker, 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Unpublished opinions are not binding precedent in this circuit.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
3

without

merit.

The

district

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court

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discussed

in

great

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detail

throughout

the

sentencing

hearings the conduct of Appellants that took their cases far
from the heartland of the applicable Guidelines.
discussed

each

Appellant’s

unique

background,

The court also
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

defendant’s favor.”

issue

had

been

decided

in

Id. (internal quotation marks omitted).
4

the

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In
that

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these

it

cases,

would

the

have

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district

imposed

court

identical

unambiguously
sentences

as

stated
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.
appeal

that

his

Notably, none of the Appellants argue on

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,

Appellants’ sentences are substantively reasonable.

and

that

Thus, any

error in the district court’s upward departures is harmless.
Accordingly, we affirm the judgment of the district court.
We

dispense

contentions

with
are

oral

argument

adequately

because

presented

in

the

facts

and

the

materials

legal
before

this court and argument would not aid the decisional process.
AFFIRMED
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