UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4778

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

COURTNEY HARRIS,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of Virginia, at Big Stone Gap. James P. Jones, Chief

District Judge. (2:09-cr-00002-jpj-pms-1)

Submitted: July 20, 2010 Decided: August 6, 2010

Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Larry W. Shelton, Federal Public Defender, Randy V. Cargill, 

Assistant Federal Public Defender, Roanoke, Virginia, for 

Appellant. Timothy J. Heaphy, United States Attorney, Debbie H. 

Stevens, Special Assistant United States Attorney, Abingdon, 

Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Courtney Harris, a federal inmate, pleaded guilty 

without a plea agreement to ten counts of indecent exposure, in 

violation of 18 U.S.C. § 13 (2006) and Va. Code Ann. § 18.2-387 

(2009). The district court calculated Harris’ advisory 

Guidelines range at 24 to 30 months’ imprisonment. See U.S. 

Sentencing Guidelines Manual (2008). The Government moved under 

18 U.S.C. § 3553(a) (2006) for an upward variance, and the 

district court granted the Government’s motion and sentenced 

Harris to 60 months’ imprisonment. Harris appeals, asserting 

three grounds to vacate his sentence: first, that the district 

court failed to specify whether it was imposing an upward 

variance or an upward departure; second, that the court failed

to adequately explain its rationale for imposing the sentence;

and third, that the sentence is substantively unreasonable. 

Finding no error, we affirm.

This court reviews the district court’s sentence, 

“whether inside, just outside, or significantly outside the 

Guidelines range,” under a “deferential abuse-of-discretion 

standard.” Gall v. United States, 552 U.S. 38, 41 (2007). This 

review entails appellate consideration of both the procedural 

and substantive reasonableness of a sentence. Id. at 51. In 

determining procedural reasonableness, we first assess whether 

the district court properly calculated the defendant’s advisory 
3

Guidelines range. Id. at 49, 51. We then consider whether the 

district court treated the Guidelines as mandatory, failed to 

consider the 18 U.S.C. § 3553(a) factors and any arguments 

presented by the parties, selected a sentence based on “clearly 

erroneous facts,” or failed to explain sufficiently the selected 

sentence. Id. at 50-51; United States v. Pauley, 511 F.3d 468, 

473 (4th Cir. 2007). We also review whether the district court 

made “an individualized assessment based on the facts 

presented.” Gall, 552 U.S. at 50; see United States v. Carter, 

564 F.3d 325, 330 (4th Cir. 2009) (holding that, while the 

“individualized assessment need not be elaborate or 

lengthy, . . . it must provide a rationale tailored to the 

particular case . . . and [be] adequate to permit meaningful 

appellate review” (internal quotation marks omitted)).

When reviewing for substantive reasonableness, we

“take into account the totality of the circumstances, including 

the extent of any variance from the Guidelines range.” Gall, 

552 U.S. at 51. We “may consider the extent of the deviation 

[from the recommended 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.” Id.; 

see United States v. Whorley, 550 F.3d 326, 342-43 (4th Cir. 

2008), cert. denied, 130 S. Ct. 1052 (2010). Even if we would 

have imposed a different sentence, this fact alone will not 
4

justify vacatur of the district court’s sentence. Whorley, 

550 F.3d at 342.

Harris first challenges his sentence on the ground 

that the district court failed to specify whether the 60-month 

sentence resulted from an upward variance or an upward 

departure. Whether the district court has imposed a departure 

or variance from the suggested Guidelines range has “real 

consequences for an appellate court’s review” of the sentence 

imposed. United States v. Brown, 578 F.3d 221, 226 (3d Cir. 

2009). Indeed, the “permissible factors justifying traditional 

departures differ from -- and are more limited than -- the 

factors a [district] court may look to in order to justify 

a . . . variance.” United States v. Hampton, 441 F.3d 284, 288 

n.2 (4th Cir. 2006). As departures are thus “subject to 

different requirements than variances,” United States v. Floyd, 

499 F.3d 308, 311 (3d Cir. 2007), it is important for district 

courts to “articulate whether a sentence is a departure or a 

variance from an advisory Guidelines range,” Brown, 578 F.3d at 

226 (internal quotation marks omitted). Because Harris did not 

raise this issue in the district court, our review is for plain 

error. See Puckett v. United States, 129 S. Ct. 1423, 1428-29 

(2009).

We conclude that Harris has failed to establish 

procedural error, much less plain procedural error, in this 
5

regard. The Government sought an upward variance from the 

Guidelines range based on certain § 3553(a) factors, and the 

district court granted the Government’s motion, stating in its 

written order that it varied above the Guidelines range based on 

relevant § 3553(a) factors. Although the district court 

misspoke at the sentencing hearing, erroneously characterizing 

its sentence as an upward departure, it is clear from the record 

that the court imposed a variant sentence.*

Harris also claims that the district court failed to 

explain its decision to impose the 60-month variant sentence and 

that the sentence is substantively unreasonable. We disagree. 

The district court heard argument from Harris’s counsel on the 

appropriate sentence, allowed Harris an opportunity to allocute, 

and thoroughly considered the § 3553(a) factors relevant to 

Harris in imposing the 60-month sentence. We have reviewed the 

record and conclude that the district court adequately explained 

 * Moreover, even if we were to assume that the district 

court’s oral mischaracterization of the sentence somehow 

constituted an obvious error, Harris still bears the burden of 

showing that such error had a prejudicial effect on the sentence 

imposed. See Puckett, 129 S. Ct. at 1429, 1433 n.4. In the 

sentencing context, an error is prejudicial if the defendant can 

show “that, absent the error, a different sentence might have 

been imposed.” United States v. Hernandez, 603 F.3d 267, 273 

(4th Cir. 2010). Harris fails to make this showing, as he does 

not suggest that the district court’s mischaracterization had 

any effect on the sentence imposed or that, but for it, a 

different sentence might have been imposed.
6

its rationale for imposing the variant sentence, that the 

sentence was “selected pursuant to a reasoned process in 

accordance with law,” and that the reasons relied upon by the 

district court are plausible and justify the sentence imposed. 

Pauley, 511 F.3d at 473-76; see Carter, 564 F.3d at 330. 

Although Harris argues that a 60-month prison sentence is

“unreasonably long,” we afford “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.

Thus, we conclude that the district court did not 

abuse its discretion in sentencing Harris. We therefore affirm 

the district court’s judgment. We dispense with oral argument 

because the facts and legal contentions are adequately presented 

in the materials before the court and argument would not aid the 

decisional process.

AFFIRMED