PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 11-4818

HARRY LOUIS HARGROVE,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of North Carolina, at Wilmington.

Terrence W. Boyle, District Judge.

(7:10-cr-00135-BO-1)

Argued: October 24, 2012

Decided: December 12, 2012

Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.

Affirmed by published opinion. Judge Shedd wrote the opinion, in which Judge Niemeyer and Judge Agee joined.

COUNSEL

ARGUED: James Edward Todd, Jr., OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for

Appellant. Kristine L. Fritz, OFFICE OF THE UNITED

STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal Public
Defender, G. Alan DuBois, Assistant Federal Public

Defender, OFFICE OF THE FEDERAL PUBLIC

DEFENDER, Raleigh, North Carolina, for Appellant. Thomas

G. Walker, United States Attorney, Jennifer P. May-Parker,

Assistant United States Attorney, OFFICE OF THE UNITED

STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

OPINION

SHEDD, Circuit Judge:

Based on his involvement in dogfighting activity, Harry

Louis Hargrove was convicted of violating one provision of

the Animal Welfare Act, 7 U.S.C. § 2156. He now appeals his

60-month sentence. Finding no reversible error, we affirm.

I

The government describes Hargrove as being a "legend" in

the dogfighting community. By Hargrove’s own admission,

he has been involved in dogfighting activity for over four decades, and at one time he had approximately 250 fighting dogs

on his property. Information in the record shows that offspring from one of Hargrove’s fighting dogs, Midnight Cowboy, sold for large sums of money across the country because

of its aggressiveness and propensity for fighting. Hargrove

advertised his dogs in various dogfighting-related publications, and he is famous in the dogfighting industry for his

dogfighting, his breeding activities, his training regimen, and

his ability to produce aggressive fighting dogs. His prior criminal history includes a 1983 Georgia felony dogfighting conviction, a 1993 North Carolina animal fighting misdemeanor

conviction, and a 2001 North Carolina animal cruelty misdemeanor conviction.

2 UNITED STATES v. HARGROVE
The investigation underlying this case began with complaints that Hargrove was involved in dogfighting on his

property in Duplin County, North Carolina. During the investigation Hargrove sold an American Pit Bull Terrier to an

undercover informant. The sale was consummated after Hargrove demonstrated the dog’s prowess by fighting it with

another dog on his property. Pursuant to a search warrant, law

enforcement officers seized 34 additional dogs which were

eventually euthanized because of poor health, aggressive tendencies, or both. Additionally, the officers found multiple

tools and indicia of the dogfighting trade throughout Hargrove’s property, including: a fighting pit that was covered in

a significant amount of blood; "break sticks" which are used

to break the bite hold of a dog during a fight; modified jumper

cables that were used to electrocute dogs; a large debris pit

that contained, among other things, dog carcasses; a bloodcovered treadmill with wooden sides; a springpole, which is

used to build up a dog’s leg and jaw muscles; an old "jenny,"

which is used to increase a dog’s stamina by having the dog

run continuously for extended periods of time while chasing

a bait; large quantities of animal medicines; and hundreds of

canine pedigrees.

The government charged Hargrove in one count with violating § 2156(b), which makes it unlawful "for any person to

knowingly sell, buy, possess, train, transport, deliver, or

receive any animal for purposes of having the animal participate in an animal fighting venture." The statutory maximum

for this offense is 60 months. See 18 U.S.C. § 49. Without a

plea agreement, Hargrove pled guilty to the charge. Before

sentencing, a probation officer calculated Hargrove’s advisory

guideline range to be 10-16 months. Objecting to this calculation, Hargrove argued that the range should be 0-6 months.

While not taking issue with the probation officer’s calculation, the government filed a motion for an upward departure

and/or a variance. As grounds for the upward departure, the

government listed extraordinary cruelty to animals, extreme

UNITED STATES v. HARGROVE 3
conduct, and inadequacy of Hargrove’s criminal history category. As grounds for the upward variance, the government

noted the violent nature of dogfighting, Hargrove’s longstanding involvement in dogfighting activities, the need for

deterrence, the need to protect the public, and the need to

avoid sentencing disparities. In support of the motion, the

government submitted a memorandum that included documentary and photo exhibits which detailed the condition of

the dogs seized from Hargrove’s property, a video clip of the

demonstration fight Hargrove arranged for the undercover

informant, and photos taken during the execution of the

search warrant on Hargrove’s property.

At the beginning of the sentencing hearing, the district

court noted the probation officer’s recommended advisory

guideline range of 10-16 months and then heard Hargrove’s

objections. Again, Hargrove contended that the range should

be 0-6 months. After hearing from Hargrove, the court discussed with the probation officer the possibility of additional

increases to the offense level calculation for more than minimal planning, vulnerable victims, and role in the offense. The

court then informed the parties that it intended to rely on these

enhancements to increase the recommended offense level.

The district court then invited the government to present

evidence in support of its motion for an upward departure or

a variance. Among other things, the government presented the

testimony of Special Agent Mark Barnhart, who described the

tools of the dogfighting trade that trainers use to increase a

dog’s aggressiveness and stamina, recounted the results from

the search of Hargrove’s property, and described the injuries

that dogs often sustain during fights. The government then

repeated its request for an upward departure or, alternatively,

for an upward variance pursuant to 18 U.S.C. § 3553(a).

Regarding the variance request, the government pointed to the

violent nature of dogfighting and Hargrove’s long-standing

involvement in breeding and training dogs for fighting. The

government also noted that Hargrove had not been deterred

4 UNITED STATES v. HARGROVE
by his prior dogfighting-related convictions, and it stated that

he deserved a longer sentence than other federal dogfighting

convicts. The government requested a departure or variance

up to the statutory maximum term of 60 months.

The district court announced that it was prepared to sentence Hargrove both under the guidelines and with an upward

departure and upward variance. The court expressed its dissatisfaction with the "irrationality" of the dogfighting guideline

provision, noting with respect to the guideline calculation of

0-6 months that Hargrove advocated: "I would say that other

than the criminal dog fighters in America, every other person

in America would be shocked beyond belief that you could do

what [Hargrove] did and come out with a federal sentence of

zero to six months. . . . No one could defend that. No judges.

No legislators. No president." J.A. 135.

The court then heard from Hargrove’s counsel, who

emphasized that Hargrove was a highly decorated military

veteran who had been changed by his experience in Vietnam.

Counsel also noted that in cases cited by the government

involving similar activities, the defendants received imprisonment sentences of between 12 and 24 months. Finally, counsel emphasized that Hargrove had been fully compliant with

his release conditions following his arrest. Hargrove then

addressed the court, stating that he thought his involvement in

dogfighting was wrong and that he had been backing away

from it for years.

The court then announced that its guidelines calculations

led to a sentencing range of 41-51 months, and it stated that

it would sentence Hargrove to 51 months if imposing sentence under that range. However, the court further stated that

an upward departure and an upward variance to 60 months

were appropriate. In response to a query from the government, the court stated: "If I had sustained the Defendant’s

objections and come up with a Guideline range that the

Defendant did not object to, I would still have imposed both

UNITED STATES v. HARGROVE 5
the upward departure to 60 months and an upward variance to

60 months." J.A. at 147.1

In a written statement setting forth the reasons for imposing

a sentence outside the guideline range, the court explained:

[T]he court found under [18 U.S.C. §] 3553 that the

nature of the offense was extreme cruelty, the [history] and characteristics of the defendant were such

that he lack[ed] any remorse or sympathy for his

actions and that he had been engaged undeterred in

this behavior for over 40 years showing also a lack

of respect for the law. The sentence is a [deterrence]

for future crimes and diminishes unwarranted sentencing [disparities] among similarly situated defendants.

J.A. 176.

II

"Federal sentencing law requires the district judge in every

case to impose ‘a sentence sufficient, but not greater than necessary, to comply with’ the purposes of federal sentencing, in

light of the Guidelines and other § 3553(a) factors." Freeman

v. United States, 131 S.Ct. 2685, 2692 (2011) (quoting 18

U.S.C. § 3553(a)). Under the current sentencing regime, "district courts may impose sentences within statutory limits

based on appropriate consideration of all of the factors listed

in § 3553(a), subject to appellate review for ‘reasonableness.’" Pepper v. United States, 131 S.Ct. 1229, 1241 (2011).

1The court’s comments indicate its intent to both depart and vary

upward, but the Judgment indicates that the court only varied upward from

the guideline range. See J.A. 175-76. For our purposes, this apparent discrepancy is immaterial. See United States v. Diosdado-Star, 630 F.3d 359,

365 (4th Cir.), cert. denied, 131 S.Ct. 2946 (2011) (noting "the practical

effects of applying either a departure or a variance are the same"). 

6 UNITED STATES v. HARGROVE
"Reasonableness review has procedural and substantive components." United States v. Mendoza-Mendoza, 597 F.3d 212,

216 (4th Cir. 2010). "Procedural reasonableness evaluates the

method used to determine a defendant’s sentence. . . . Substantive 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)." Mendoza-Mendoza, 597

F.3d at 216.

A.

Although the sentencing guidelines are only advisory,

improper calculation of a guideline range constitutes significant procedural error, making the sentence procedurally

unreasonable and subject to being vacated. United States v.

Clay, 627 F.3d 959, 970 (4th Cir. 2010). Hargrove argues that

he should be resentenced because the district court incorrectly

applied three sentencing enhancements and incorrectly determined his relevant conduct. He maintains that, without these

errors, his guideline range would have been 0-6 months rather

than the 41-51 month range used by the court. The government concedes that the court erroneously calculated Hargrove’s guideline range by misapplying two enhancements.

Of course, we are not bound by the government’s concession

of error, United States v. Boulware, 604 F.3d 832, 837 (4th

Cir. 2010), but if we agreed with the government and if we

ended the analysis at this point, we would be compelled to

vacate Hargrove’s sentence and remand for resentencing.

However, as with most types of errors in a criminal proceeding, "procedural errors at sentencing . . . are routinely

subject to harmlessness review." Puckett v. United States, 556

U.S. 129, 141 (2009); see also Zedner v. United States, 547

U.S. 489, 507 (2006) (noting that "[h]armless-error review . . .

presumptively applies to all errors where a proper objection

is made" (emphasis in original; internal quotation marks omitUNITED STATES v. HARGROVE 7
ted)).2

 In order to prevail on harmlessness review, the government must show that an error did not affect a defendant’s

"substantial rights." United States v. Robinson, 460 F.3d 550,

557 (4th Cir. 2006). A sentencing error is harmless "if the

resulting sentence was not longer than that to which [the

defendant] would otherwise be subject." United States v.

Mehta, 594 F.3d 277, 283 (4th Cir. 2010) (internal quotation

marks omitted). In performing harmless-error review, an

appellate court may assume that a sentencing error occurred

and proceed to examine whether the error affected the sentence imposed. See, e.g., Jones v. United States, 527 U.S. 373,

402 (1999) (discussing harmless-error review of death sentences).

The government contends that regardless of any errors the

district court may have made in calculating Hargrove’s guideline range, the errors are harmless and resentencing is unnecessary because the court expressly imposed a substantively

reasonable alternate sentence based on the § 3553(a) factors.

For support, the government specifically points to our decision in United States v. Savillon-Matute, 636 F.3d 119 (4th

Cir.), cert. denied, 132 S.Ct. 454 (2011).

In Savillon-Matute, the defendant appealed his 36-month

upward variance sentence, arguing that he should be resentenced because the district court incorrectly increased his base

offense level by eight levels. The propriety of that offenselevel enhancement hinged on the applicability of the modified

categorical approach established in Shepard v. United States,

544 U.S. 13 (2005), as it pertained to the defendant’s prior

conviction. Without the asserted guideline calculation error,

the guideline range would have been 4-10 months rather than

the 12-18 month range applied by the court. Using an "assumed error harmlessness inquiry," we affirmed the sentence

2Harmlessness review is mandated generally by 28 U.S.C. § 2111 and

Fed. R. Crim. P. 52(a). 

8 UNITED STATES v. HARGROVE
"without reaching the merits of the claimed guideline error."

Savillon-Matute, 636 F.3d at 123-24.

As we explained, the assumed error harmlessness inquiry

"requires (1) ‘knowledge that the district court would have

reached the same result even if it had decided the guidelines

issue the other way,’ and (2) ‘a determination that the sentence would be reasonable even if the guidelines issue had

been decided in the defendant’s favor.’" Id. at 123 (quoting

United States v. Keene, 470 F.3d 1347, 1349 (11th Cir.

2006)). We explained the point underlying this inquiry: "‘[I]t

would make no sense to set aside [a] reasonable sentence and

send the case back to the district court since it has already told

us that it would impose exactly the same sentence, a sentence

we would be compelled to affirm.’" Savillon-Matute, 636

F.3d at 123 (quoting Keene, 470 F.3d at 1350).3

Applying the inquiry to the facts of that case, we concluded

with respect to the first part of the analysis that although the

district court did not specifically state that it would have

imposed the same sentence without the enhancement, its comments throughout the sentencing hearing showed that it would

have done so. As to the second part of the analysis, we concluded that even if the correct guideline range was 4-10

months, the court adequately explained the sentence in accord

with the § 3553(a) factors.

We have applied Savillon-Matute in several subsequent

cases. See, e.g., United States v. Shrader, 675 F.3d 300, 315

3We had previously reviewed an alternate sentence in performing harmlessness review. In United States v. Revels, 455 F.3d 448 (4th Cir. 2006),

we found the district court’s Sixth Amendment error in applying the sentencing guidelines in a mandatory fashion to be harmless where the court

announced, as an alternate sentence, that it would have imposed the same

sentence under § 3553(a) using an advisory guideline system. We noted

that resentencing in that instance would be "little more than an empty formality, for the sentence the district court would impose on remand is a

foregone conclusion." Id. at 452. 

UNITED STATES v. HARGROVE 9
(4th Cir. 2012) ("We . . . need not address the propriety of the

ACCA enhancement, because an upward variance or departure in this case would produce exactly the same result and

because the transcript makes clear that the sentence herein,

irrespective of any ACCA enhancement, plainly effectuated

the trial court’s sentencing intent."); United States v. RiveraSantana, 668 F.3d 95, 103 (4th Cir. 2012) (explaining that

"we are, in any event, entitled to affirm the sentence imposed

— assuming its substantive reasonableness — because any

procedural error that may have been made in calculating

either of the two departures would necessarily be harmless").

Other circuit courts of appeals have ruled similarly. See, e.g.,

United States v. Waller, 689 F.3d 947, 958 (8th Cir. 2012);

United States v. Richardson, 676 F.3d 491, 510-511 (5th Cir.

2012); United States v. Hill, 645 F.3d 900, 912-13 (7th Cir.

2011).

Hargrove contends that Savillon-Matute must be read narrowly to apply only under the unique circumstances of that

case (i.e., involving the Shepard issue), and that application

of the assumed error harmlessness inquiry in this case runs

afoul of well-settled precedent requiring the district court to

calculate the guidelines correctly. In his view, reviewing sentences under that inquiry "would erode any incentive for district courts to address and accurately decide Guideline issues

and would grant them a degree of discretion almost exactly

comparable to what they enjoyed in the pre-Guidelines system." Reply Brief for Appellant, at 13. We disagree.4

4At oral argument, Hargrove asserted that an alternate sentence such as

the one imposed in this case constitutes structural error that is not susceptible to harmlessness review. We find no merit to this assertion. See Washington v. Recuenco, 548 U.S. 212, 218 (2006) ("Only in rare cases has this

Court held that an error is structural, and thus requires automatic reversal."); United States v. White, 405 F.3d 208, 222 (4th Cir. 2005) ("We

decline to classify the error of sentencing a defendant under the preBooker mandatory guidelines regime as a structural error."). 

10 UNITED STATES v. HARGROVE
As an initial matter, we reject Hargrove’s narrow reading

of Savillon-Matute. Although the precise legal issue there did

involve the potential application of Shepard, the broader

question before us was the reasonableness of the sentence in

light of the defendant’s claim that his guideline range was

miscalculated. In that regard, Savillon-Matute is indistinguishable from this case.

In any event, we believe that Hargrove misstates the impact

of the assumed error harmlessness inquiry. The guidelines

"provide a framework or starting point . . . for the [district

court’s] exercise of discretion," Freeman, 131 S.Ct. at 2692,

and "a district court should begin all sentencing proceedings

by correctly calculating the applicable Guidelines range,"

Gall v. United States, 552 U.S. 38, 49 (2007). However, consistent with the basic mandate that we review most errors for

harmlessness, the assumed error harmlessness inquiry is an

appellate tool that we utilize in appropriate circumstances to

avoid the "empty formality" of an unnecessary remand where

it is clear that an asserted guideline miscalculation did not

affect the ultimate sentence. This appellate standard of review

does not allow district courts to ignore their responsibility to

consider the guidelines in a meaningful manner when sentencing a defendant. See generally Rita v. United States, 551 U.S.

338, 351 (2007) (noting that the presumption of reasonableness of a within-guidelines sentence applies only on appellate

review and does not affect the district court’s sentencing obligations). Nothing in Savillon-Matute suggests otherwise, and

the district court below certainly did not fail to consider the

guidelines in a meaningful manner (even if, as the parties

agree, it erred in its sentencing range calculation).5

5Likewise, the district court in Savillon-Matute appears to have carefully considered the guidelines, but it simply chose a sentencing range that

differed from what the defendant sought. 

UNITED STATES v. HARGROVE 11
B.

We now apply the assumed error harmlessness inquiry to

the facts of this case. Under the first step of the analysis, we

have no difficulty in concluding that the district court would

have sentenced Hargrove to 60 months even if the guideline

range was 0-6 months. The court expressly told us so. The

dispositive question, therefore, is whether the upward variance to 60 months from an assumed guideline range of 0-6

months is substantively reasonable under the facts of this

case. Mindful of our deferential standard of review, SavillonMatute, 636 F.3d at 124, we conclude that it is.

The fact that "a variance sentence deviates significantly

from the advisory Guidelines range . . . does not alone render

it presumptively unreasonable." Rivera-Santana, 668 F.3d at

106. When reviewing substantive reasonableness, we "may

consider the extent of the deviation [from the guidelines

range], but must give due deference to the district court’s

decision that the § 3553(a) factors, on a whole, justify the

extent of the variance." Gall, 552 U.S. at 51. Section 3553(a)

instructs the district court to consider (1) offense and offender

characteristics; (2) the need for a sentence to reflect the basic

aims of sentencing (i.e., retribution, deterrence, incapacitation, and rehabilitation); (3) the sentences legally available;

(4) the sentencing guidelines; (5) any Sentencing Commission

policy statements; (6) the need to avoid unwarranted disparities; and (7) the need for restitution. The record reflects that

the district court conducted a thorough individualized assessment of Hargrove and his offense conduct in light of these

factors.

For example, the district court was well aware of the nature

and circumstances of Hargrove’s offense. The presentence

investigation report, the government’s sentencing memorandum, and the testimony of Special Agent Barnhart detailed

Hargrove’s cruel and barbaric treatment of the dogs he trained

to fight. The court was also able to view evidence pertaining

12 UNITED STATES v. HARGROVE
to Hargrove’s mistreatment of dogs, and it described the

offense conduct as being "incredibly barbaric." J.A. 134.

In addition, the district court considered Hargrove’s history

and characteristics. While acknowledging that Hargrove was

a military veteran who had provided heroic service to his

country, the court noted that he chose to "discard all of that

for this life of brutality and life of cruelty." J.A. 137. The

court observed that Hargrove’s involvement in dogfighting

became "the most prominent, distinguishing characteristic of

his life," J.A. 138, and it questioned whether Hargrove truly

appreciated the wrongfulness of his conduct and accepted full

responsibility for the damage his behavior caused. 

The district court also considered the need for the sentence

to reflect the seriousness of the offense, to promote respect for

the law, to provide just punishment for the offense, and to

afford adequate deterrence to criminal conduct. The court

knew from Hargrove’s admissions that he had been involved

in dogfighting and training for several decades and that it was

difficult for him to keep away from dogfighting because it

was a big part of his life. Additionally, the court noted that

Hargrove planned his extensive involvement in this criminal

activity, and it expressed concern about the danger that his

conduct presented to others, stating that he was "introducing

into the society . . . animals who have been so deranged that

they become a threat, a danger to humanity." J.A. 140.6

6

In arguing that his sentence is substantively unreasonable, Hargrove

points to other dogfighting sentences and contends that his sentence

creates an improper sentencing disparity. "Put succinctly, we are unwilling

to isolate a possible sentencing disparity to the exclusion of all the other

§ 3553(a) factors." Rivera-Santana, 668 F.3d at 106 (internal quotation

marks omitted). In any event, we find that cases cited by Hargrove do not

involve similarly situated defendants. Hargrove also contends that because

he received the statutory maximum sentence, he received no credit for his

acceptance of responsibility. However, the record reflects that acceptance

of responsibility was included in the guideline calculation (at any range),

and we hold that a sentence is not per se unreasonable simply because the

district court imposes a sentence at the statutory maximum on a defendant

who has accepted responsibility. 

UNITED STATES v. HARGROVE 13
In short, the court made abundantly clear that even if Hargrove’s sentencing guideline range was 0-6 months, it

believed a 60-month sentence was necessary to accomplish

the objectives of sentencing. Given the record before us, we

cannot conclude that the court’s exercise of its sentencing discretion in imposing a 60-month sentence is unreasonable.

III

Based on the foregoing, we affirm Hargrove’s sentence.

AFFIRMED

14 UNITED STATES v. HARGROVE