UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-4982

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

SHEIK PEARSON,

Defendant – Appellant.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. Catherine C. Blake, District Judge. 

(1:12-cr-00077-CCB-1)

Argued: December 10, 2014 Decided: January 6, 2015

Before SHEDD, DIAZ, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Vincent Anthony Jankoski, VINCENT A. JANKOSKI, ESQ., 

Silver Spring, Maryland, for Appellant. Evan Thomas Shea, 

OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for 

Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney, 

OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Sheik Pearson pled guilty to one count of money laundering.

The district court calculated Pearson’s advisory sentencing 

Guidelines range to be 51-63 months. The court included in its 

calculation an offense level reduction for acceptance of 

responsibility under U.S.S.G. § 3E1.1(a), but it denied 

Pearson’s motion to compel the government to move for an 

additional offense level reduction for acceptance of 

responsibility pursuant to § 3E1.1(b).1 Ultimately, the court 

varied downward from the advisory range and sentenced Pearson to 

36 months. In doing so, the court stated that it would have 

imposed the same 36-month sentence even if it had decided the 

§ 3E1.1(b) issue in Pearson’s favor. Pearson now appeals the 

sentence, arguing that the court erred by denying his motion to 

compel the government to move for the § 3E1.1(b) reduction and 

by failing to adequately consider 18 U.S.C. §§ 3553(a)(2)(A) and 

 1 Section 3E1.1(a) provides for a two-level decrease in a 

defendant’s offense level if the defendant “clearly demonstrates 

acceptance of responsibility for his offense.” Section 3E1.1(b) 

provides for an additional one-level decrease only if the 

government files an appropriate motion, but a district court may 

compel the government to file such a motion if the government 

had declined to do so without a proper reason. See United States 

v. Divens, 650 F.3d 343, 350 (4th Cir. 2011). Had the district 

court applied the § 3E1.1(b) reduction in this case, Pearson’s

advisory range would have been 46-57 months.
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3553(a)(6) in sentencing him to a longer term of incarceration 

than his co-defendants received. We affirm.

“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). “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).” Id.

As noted, Pearson first contends that the district court 

erred by not applying the § 3E1.1(b) additional offense level 

reduction. “Failure to calculate the correct Guidelines range 

constitutes procedural error.” Peugh v. United States, 133 S.Ct. 
4

2072, 2080 (2013). However, “as with most types of errors in a 

criminal proceeding, ‘procedural errors at sentencing . . . are 

routinely subject to harmlessness review,’” United States v. 

Hargrove, 701 F.3d 156, 161 (4th Cir. 2012), cert. denied, 133 

S.Ct. 2403 (2013) (quoting Puckett v. United States, 556 U.S. 

129, 141 (2009)); and the government argues (among other things) 

that any error in the court’s § 3E1.1(b) determination is 

harmless.

A claimed procedural sentencing error is considered to be 

harmless if the resulting sentence was not longer than that to 

which the defendant would otherwise be subject. Hargrove, 701 

F.3d at 161. In performing harmless-error review, we “may assume 

that a sentencing error occurred and proceed to examine whether 

the error affected the sentence imposed.” Id. Thus, we may 

affirm a sentence notwithstanding a claimed Guidelines error if 

(1) we can glean from the record that the district court would 

have reached the same result even if it had decided the disputed 

Guidelines issue in the defendant’s favor and (2) we can 

determine that the sentence would be reasonable even if the 

disputed Guidelines issue had been decided in the defendant’s 

favor. Id. at 162. We conclude that both steps of this analysis 

are met in this case.

Our resolution of the first step of the harmlessness 

analysis is readily apparent from the district court’s comments 
5

at sentencing. After denying Pearson’s attempt to receive the 

§ 3E1.1(b) reduction, the court expressly stated that the § 

3E1.1(b) issue “was not of any determining significance to me in 

my analysis of the [§] 3553(a) factors. The sentence I have come 

to is the one that I think is appropriate, even if I am wrong 

about the one point for acceptance of responsibility.” J.A. 494; 

see also J.A. 495 (“I would impose the same sentence.”). 

Accordingly, we will proceed to the second step of the analysis, 

under which we must decide whether the 36-month sentence would 

be reasonable if, as Pearson contends, the advisory Guidelines

range was 46-57 months (rather than 51-63 months).2

The 36-month sentence represents a downward variance from 

the 51-63 month Guidelines range calculated by the district 

court, and it is below the 46-57 month Guidelines range proposed 

by Pearson. As such, regardless of which Guidelines range is 

correct, the sentence is presumptively reasonable, see United 

 2 In his written plea agreement, Pearson generally waived 

the right “to appeal whatever sentence is imposed,” but he 

reserved the right “to appeal the calculation of the offense 

level under the advisory guidelines to the extent that it does 

not include a one-level reduction under § 3E1.1(b).” J.A. 74. 

The government argues that under this waiver we should review 

Pearson’s challenge to the substantive reasonableness of his 

sentence only if we first conclude that the district court erred 

regarding § 3E1.1(b). In light of our application of the 

harmless error analysis, under which we assume that the court 

erred in its § 3E1.1(b) determination, we decline to enforce the

appeal waiver.
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States v. Susi, 674 F.3d 278, 289 (4th Cir. 2012), and Pearson 

bears the burden to rebut the presumption by demonstrating that 

the sentence is unreasonable when measured against the § 3553(a) 

factors, see United States v. Montes-Pineda, 445 F.3d 375, 379 

(4th Cir. 2006). Pearson has failed to meet this burden.

In our view, the district court adequately considered the 

appropriate factors under § 3553(a). Turning to Pearson’s 

specific challenge to the court’s treatment of the § 3553(a) 

factors, we find no merit to his assertion that the court failed

to adequately consider §§ 3553(a)(2)(A) and 3553(a)(6) in 

sentencing him to a longer term of incarceration than his codefendants received. See J.A. 490-92 (court’s explanation of the 

relative sentences). On this point, Pearson is essentially 

asking us to substitute our judgment for that of the district 

court, but we are not at liberty to do so. See United States v. 

Evans, 526 F.3d 155, 160 (4th Cir. 2008) (noting that “an 

appellate court must defer to the trial court and can reverse a 

sentence only if it is unreasonable, even if the sentence would 

not have been the choice of the appellate court” (emphasis in 

original)).

Based on the foregoing, we affirm the 36-month sentence.

AFFIRMED