UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4908

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CHRISTOPHER JONELL TYLER,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, Chief District Judge. (1:06-cr-00252-MR-1)

Submitted: March 10, 2021 Decided: March 23, 2021

Before WILKINSON, MOTZ, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

James W. Kilbourne, Jr., ALLEN STAHL & KILBOURNE, PLLC, Asheville, North Carolina, for Appellant. R. Andrew Murray, United States Attorney, Charlotte, North Carolina, Amy E. Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Pursuant to a written plea agreement, Christopher Jonell Tyler pled guilty to

conspiracy to commit Hobbs Act robbery,

, possession of a firearm during

and in relation to a crime of violence,

(c), and possession of a firearm by a

felon,

(g). The district court imposed an aggregate sentence of 255 months’

imprisonment, consisting of 135 months on the Hobbs Act conspiracy, a concurrent 120

months on the § 922(g) offense, and a mandatory consecutive sentence of 120 months on

the § 924(c) offense. The district court subsequently granted Tyler’s

motion, vacated his § 924(c) conviction, and ordered that Tyler be resentenced on the

remaining counts. Tyler now appeals the 236-month, upward variance sentence imposed

upon resentencing. For the reasons that follow, we affirm.

We review a criminal sentence, “whether inside, just outside, or significantly

outside the Guidelines range,” for reasonableness “under a deferential abuse-of-discretion

standard.” Gall v. United States,

(2007); see United States v. Provance,

(4th Cir. 2019). We first must determine whether the district court

committed procedural error, such as failing to calculate or improperly calculating the

Guidelines range, failing to give the parties an opportunity to argue for an appropriate

sentence, insufficiently considering the

(a) sentencing factors, relying on

clearly erroneous facts, or inadequately explaining the sentence imposed. United States v.

Lymas,

(4th Cir. 2015). “If we determine that the district court has

not committed procedural error, only then do we proceed to assess the substantive

reasonableness of the sentence.” United States v. Nance,

(4th Cir.), cert.

2 denied,

(2020). The sentence imposed must be “sufficient, but not greater

than necessary,” to satisfy the goals of sentencing.

(a).

Tyler first contends that the district court erred by applying the cross reference to

the Sentencing Guidelines for assault with intent to commit murder. U.S. Sentencing

Guidelines Manual (“USSG”) §§ 2A2.1(a)(1), 2K2.1(c)(1)(A), 2X1.1(c)(1) (2018).

Although he did not challenge the application of this sentencing enhancement at his initial

sentencing, Tyler asserts that the resentencing court was not bound by any rulings made at

the original sentencing, but instead may consider anew any rulings made at the initial

sentence. See United States v. Ventura,

(4th Cir. 2017) (at resentencing,

“the [initial] sentence becomes void in its entirety and the district court is free to revisit

any rulings it made at the initial sentencing”). Contrary to Tyler’s argument, the district

court did revisit whether the cross reference was appropriate. Overruling Tyler’s objection

to the cross reference, the district court emphasized that the offense conduct involved Tyler

repeatedly shooting at the intended robbery victim, who had fired a gun at Tyler and his

accomplice. The court found that Tyler’s conduct supported a reasonable inference that

Tyler intended to shoot and kill the victim in order to stop the victim from firing any further

shots. We conclude that the district court did not clearly err in overruling Tyler’s objection

and applying the cross reference to assault with intent to commit murder. See United States

v. Hassan,

(4th Cir. 2014) (providing standard).

Tyler also contends that the district court failed to properly apply the sentencing

package doctrine, and instead placed too much weight on the sentence originally imposed

rather than making an independent determination of an appropriate sentence. The

3 sentencing package doctrine acknowledges that “sentencing on multiple counts is an

inherently interrelated, interconnected, and holistic process which requires a court to craft

an overall sentence—the sentence package—that reflects the guidelines and the relevant

§ 3553(a) factors.” United States v. Pearson,

, 1215 n.10 (11th Cir. 2019)

(internal quotations omitted). Thus, upon resentencing a defendant on the remaining

convictions after the vacatur of one conviction, the district court may “reconfigure the

sentencing plan to ensure that it remains adequate to satisfy the sentencing factors in

(a).” Greenlaw v. United States,

(2008). In doing so, the

resentencing court is not bound by any rulings made at the original sentencing as to the

appropriate aggregate sentence. Rather, the district court may consider anew any rulings

made at the initial sentencing. Ventura,

; see Pepper v. United States,

(2011) (providing that, after remand for resentencing, district court may

consider evidence of defendant’s rehabilitation since initial sentencing and may vary

downward from advisory Guidelines range on that basis).

Our review of the record convinces us that Tyler’s claim is without merit. The

district court expressly considered the findings at the initial sentencing instructive but not

binding, and it assessed the sentencing factors anew when determining an appropriate

sentence for Tyler’s remaining convictions.

Tyler also contends that the district court erred by imposing an upward variance

sentence and that it failed to adequately explain and support the extent of the variance. In

reviewing the substantive reasonableness of a sentence, we “examine[] the totality of the

circumstances to see whether the sentencing court abused its discretion in concluding that

4 the sentence it chose satisfied the standards set forth in § 3553(a).” United States v.

Hargrove,

(4th Cir. 2012) (internal quotation marks omitted).

“Where, as here, the sentence is outside the advisory Guidelines range, we must 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.”

Nance,

(internal quotation marks omitted). District courts “have extremely

broad discretion when determining the weight to be given each of the § 3553(a) factors,

and the fact that a variance sentence deviates, even significantly, from the Guidelines range

does not alone render it presumptively unreasonable.” Id. (citations and internal quotation

marks omitted). Thus, we “must give due deference to the district court’s decision that the

§ 3553(a) factors, on a whole, justify the extent of the variance.” Hargrove,

(brackets and internal quotation marks omitted).

The district court explained that, after reviewing “anew” the sentencing factors, it

determined that an upward variant sentence of 236 months’ imprisonment was necessary

to meet the sentencing goals of § 3553(a), particularly due to the seriousness of the

offense—Tyler having repeatedly discharged a firearm during the attempted robbery. The

court specifically noted that the Guidelines range did not account for the fact that “violent

crimes committed with firearms are more serious than other violent crimes.” Given the

violent nature of Tyler’s offense conduct, the court determined that the advisory Guidelines

range—even with the attempted murder cross reference—understated the seriousness of

the offense conduct.

5 The court further explained that it found the prior sentencing decision instructive

but not binding, and that it “reduced the sentence somewhat,” due to new information

presented at the resentencing hearing. In light of the “extremely broad” deference accorded

a district court’s determination that the § 3553(a) factors, as a whole, justify the extent of

a variance, and considering the totality of the circumstances, United States v. McCain,

(4th Cir. 2020) (internal quotation marks omitted), we conclude that Tyler’s

68-month upward variance sentence is not substantively unreasonable. See, e.g., Hargrove,

(affirming variance from 0-to-6-month Guidelines range to 60-month

sentence); United States v. Diosdado-Star,

(4th Cir. 2011) (affirming

variance sentence six years greater than Guidelines range because sentence was based on

the district court’s examination of relevant § 3553(a) factors).

We therefore 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

6