UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4329

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

LEWIS LAVAN MURDOCK,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:17-cr-00305-WO-1)

Submitted: January 17, 2019 Decided: January 22, 2019

Before WILKINSON and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, Federal Public Defender, Ira Knight, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greensboro, North Carolina, for Appellant. Matthew G.T. Martin, United States Attorney, Randall S. Galyon, Assistant United States Attorney, Michael P. Diven, Third Year Law Student, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Lewis Lavan Murdock appeals the 30-month sentence imposed after he pled

guilty, pursuant to a written plea agreement, to possession of a firearm by a convicted

felon, in violation of

(g)(1), 924(a)(2) (2012). This sentence was within

the 27- to 33-month Sentencing Guidelines range determined at sentencing. Murdock

disputes the district court’s application of a four-level sentencing enhancement for using

or possessing a firearm in connection with an other felony offense—specifically,

possession with intent to sell or deliver a counterfeit controlled substance. The

Government responds that, even if the district court erred in finding this enhancement

applied, the sentence may be affirmed because the district court announced the same

sentence as an upward variant sentence that is supported by the record. We agree.

When a sentencing court imposes a Guidelines sentence and states that it would

impose the same term as an alternative variant sentence, “rather than review the merits of

each [Guidelines] challenge[ ], we may proceed directly to an ‘assumed harmlessness

inquiry.’” United States v. Gomez-Jimenez,

(4th Cir. 2014) (quoting

United States v. Hargrove,

(4th Cir. 2012)). An error in the

calculation of the Guidelines is harmless if: “(1) ‘the district court would have reached

the same result even if it had decided the guidelines issue the other way,’ and (2) ‘the

sentence would be reasonable even if the guidelines issue had been decided in the

defendant’s favor.’”

(quoting United States v. Savillon-Matute,

(4th Cir. 2011)).

2 Here, the district court explicitly stated that it would have imposed the same 30-

month sentence even if it miscalculated Murdock’s advisory Guidelines range. We

conclude that this statement satisfies the first step of the harmlessness inquiry. Id. at 383.

The second step of the inquiry is whether Murdock’s sentence would be

reasonable even if the Guidelines issue was decided in Murdock’s favor—or, in other

words, whether Murdock’s 30-month sentence is substantively reasonable. United States

v. McDonald,

(4th Cir.), cert. denied,

(2017). The

record reveals that the district court reviewed the

(a) (2012) sentencing

factors and concluded that a 30-month sentence was sufficient, but not greater than

necessary, due to various facts reflecting the seriousness of the underlying offense.

Given the district court’s reasoning and the deferential standard with which we review

criminal sentences, see Gall v. United States,

(2007), we conclude

that Murdock’s sentence would be substantively reasonable even if the disputed

Guidelines issue was resolved in his favor, see Savillon-Matute,

.

Thus, even assuming that the district court erred in applying this enhancement in this

case, in light of the district court’s alternative variant sentence, such error is harmless.

Accordingly, we affirm the criminal judgment. 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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