UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-5219

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

DIVINE JUSTICE REDDICK,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at New Bern. Louise W. Flanagan, 

Chief District Judge. (5:08-cr-00130-FL-1)

Argued: May 14, 2010 Decided: June 16, 2010

Before MOTZ, KING, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Stephen Clayton Gordon, OFFICE OF THE FEDERAL PUBLIC 

DEFENDER, Raleigh, North Carolina, for Appellant. Anne Margaret 

Hayes, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North 

Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal 

Public Defender, Raleigh, North Carolina, for Appellant. John 

Stuart Bruce, Acting United States Attorney, Jennifer P. MayParker, Assistant United States Attorney, OFFICE OF THE UNITED 

STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

In 2008, Divine Justice Reddick was convicted and sentenced 

in the Eastern District of North Carolina for two offenses 

arising from his role in an armed bank robbery. Reddick pursues

two appellate challenges to his aggregate sentence of 200 

months. First, Reddick maintains that, in departing upward 

based on the inadequacy of his criminal history category, the 

district court procedurally erred by failing to comply with 

section 4A1.3 of the Sentencing Guidelines. Second, Reddick

contends that the court substantively erred in departing upward 

to the sentence that it imposed. As explained below, we reject 

both contentions and affirm. 

I.

On May 15, 2008, Reddick was charged in a three-count 

indictment with putting in jeopardy the life of another by using

a dangerous weapon in a bank robbery, in contravention of 18 

U.S.C. § 2113(d) (Count One); using and carrying a firearm 

during and in relation to a crime of violence, in contravention

of 18 U.S.C. § 924(c)(1)(A) (Count Two); and being a felon in 

possession of a firearm, in contravention of 18 U.S.C. 

§ 922(g)(1) (Count Three). On September 3, 2008, Reddick 

pleaded guilty to Counts One and Two pursuant to a plea 

agreement that reserved his right to appeal any sentence in 
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excess of the advisory Guidelines range. Pursuant to the plea 

agreement, the prosecution dismissed Count Three. 

On December 4, 2008, Reddick’s Presentence Investigation 

Report (the “PSR”) was submitted to the district court. On

Count One, the PSR recommended a Guidelines range of 51 to 63 

months of imprisonment, predicated on a total offense level of 

20 and a criminal history category of IV. With respect to Count 

Two, the PSR recognized that the applicable Guidelines sentence

was the statutory minimum consecutive term of 84 months. See 18 

U.S.C. § 924(c)(1)(A)(ii); USSG § 2K2.4(b). 

In the “Impact of the Plea Agreement” section of the PSR, 

the probation officer explained that the prosecution’s dismissal 

of Count Three significantly impacted Reddick’s advisory 

Guidelines range. Had Reddick been convicted on Count Three, 

the PSR explained, “he would have been designated as an Armed 

Career Criminal and would be subject to a statutory penalty of 

[180 months] to Life on that count and his criminal history 

category would be VI rather than IV.” J.A. 93.*

 * Citations herein to “J.A. ___” refer to the Joint Appendix 

filed by the parties in this appeal.

 Under that 

scenario, Reddick would have been subject to (1) a Guidelines 

range of 70 to 80 months on Count One; (2) a consecutive 84-

month statutory minimum sentence on Count Two; and (3) a 
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concurrent 180-month statutory minimum sentence on Count Three. 

Thus, had he been convicted on Count Three, Reddick would have 

faced a statutory minimum of 264 months. Because Reddick’s 

advisory Guidelines range (51 to 63 months on Count One and a 

minimum of 84 months on Count Two) fell well below 264 months, 

the PSR specified that the district court “may wish to consider 

an upward departure pursuant to 4A1.3 (Departures Based on 

Inadequacy of Criminal History Category) and 5K2.21 (Dismissed 

and Uncharged Conduct) based upon the dismissal of Count 

[Three].” Id. at 94.

At the sentencing hearing conducted in December 2008, the 

district court expressed concern with the discrepancy between 

the advisory Guidelines range calculated by the PSR and the 

minimum of 264 months that would have accompanied a conviction 

on Count Three. In response, the Government acknowledged that, 

when it agreed to dismiss Count Three, it had miscalculated 

Reddick’s predicate convictions and did not recognize that he

would have qualified as an armed career criminal had he been 

convicted on Count Three. The prosecution maintained, however, 

that a within-Guidelines sentence on Count One (51 to 63 

months), plus 84 months on Count Two, would sufficiently serve 

the sentencing factors of 18 U.S.C. § 3553(a).

Nevertheless, the district court imposed a 200-month 

sentence, consisting of an above-Guidelines sentence of 116 
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months on Count One and a consecutive 84 months on Count Two. 

The court relied on two separate Guidelines provisions to 

support its upward departure. First, it applied Guidelines 

section 4A1.3, which authorizes an upward departure when, inter 

alia, a defendant’s criminal history category substantially 

underrepresents the likelihood that he will commit other crimes. 

See USSG § 4A1.3(a)(1). Second, the court applied Guidelines 

section 5K2.21, which authorizes an upward departure that

reflects the actual seriousness of the defendant’s offense based 

on conduct underlying a charge dismissed under a plea agreement. 

Notably, the court did not specify the extent of departure 

attributable to each Guidelines provision, nor did it indicate 

the Guidelines range to which it was departing. The court then 

assessed and applied the § 3553(a) sentencing factors, 

concluding that a sentence within the Guidelines range as 

originally calculated would be insufficient to achieve the 

purposes of sentencing. Thus, it imposed an aggregate sentence 

of 200 months.

Reddick has filed a timely notice of appeal, and we possess 

jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. 

§ 1291.
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II.

We review a sentence imposed by a district court for 

reasonableness, applying the deferential abuse of discretion 

standard. Gall v. United States, 552 U.S. 38, 46 (2007). This 

standard of review encompasses both procedural and substantive 

reasonableness. Id. at 51. We first ensure that the court 

committed no significant procedural error, “such as failing to 

calculate (or improperly calculating) the Guidelines range.” 

Id. If there is no procedural error, we review the sentence for 

substantive reasonableness, taking the “totality of the 

circumstances” into account to determine whether the court 

“abused its discretion in concluding that the sentence it chose 

satisfied the standards set forth in § 3553(a).” United States 

v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). 

III.

A.

Reddick first challenges his sentence as procedurally 

unreasonable, maintaining that the district court erred in 

departing upward on Count One by failing to apply the 

incremental approach mandated by Guidelines section 4A1.3. That 

provision, entitled “Departures Based on Inadequacy of Criminal 

History Category,” authorizes a sentencing court to depart 

upward “[i]f reliable information indicates that the defendant’s 
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criminal history category substantially under-represents the 

seriousness of [his] criminal history or the likelihood that 

[he] will commit other crimes.” USSG § 4A1.3(a)(1). After the

sentencing court determines that a section 4A1.3 departure is 

warranted, it is obliged to depart on an incremental basis, 

moving “horizontally across successive criminal history 

categories up to category VI,” and, if that category is 

inadequate, vertically “to successively higher offense levels 

until it finds a guideline range appropriate to the case.” 

United States v. McNeill, 598 F.3d 161, 166 (4th Cir. 2010); see 

also United States v. Harrison, 58 F.3d 115, 118 (4th Cir. 

1995). In applying this incremental approach, the court may 

“move to successively higher categories only upon finding that 

the prior category does not provide a sentence that adequately 

reflects the seriousness of the defendant’s criminal conduct.” 

United States v. Cash, 983 F.2d 558, 561 (4th Cir. 1992).

Reddick contends that, in imposing an above-Guidelines 

sentence on Count One, the district court failed to employ the 

incremental approach required by section 4A1.3. He maintains 

that the court moved directly from the Guidelines range 

corresponding to an offense level of 20 and a criminal history 

category of IV (51 to 63 months) to the range applicable to an 

offense level of 24 and a criminal history category of VI (100 

to 125 months) without first assessing whether the intermediate 
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criminal history category of V or the intermediate offense 

levels of 21, 22, or 23 adequately reflected the seriousness of 

his criminal conduct. Accordingly, Reddick contends that the 

court procedurally erred and that his sentence must be vacated.

The fundamental flaw with this contention is that, even if 

the district court failed to apply the incremental analysis of

Guidelines section 4A1.3, any such error is harmless. See

United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010) 

(concluding that procedural sentencing errors are subject to 

harmless error review). Notably, we have recognized that when 

“a district court offers two or more independent rationales for 

its deviation, an appellate court cannot hold the sentence 

unreasonable if the appellate court finds fault with just one of 

these rationales.” United States v. Evans, 526 F.3d 155, 165 

(4th Cir. 2008). Here, in addition to Guidelines section 4A1.3, 

the district court also relied on section 5K2.21, which 

authorizes an upward departure “to reflect the seriousness of 

the offense based on conduct (1) underlying a charge dismissed 

as part of a plea agreement . . . and (2) that did not enter 

into the determination of the applicable guideline range.” 

Importantly, section 5K2.21 does not require a sentencing court

to apply any sort of incremental analysis when departing upward, 

and Reddick does not contend that the court otherwise erred in 

applying that provision. In other words, the court offered a 
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separate and procedurally sound rationale for its upward 

departure from Reddick’s advisory Guidelines range on Count One. 

Thus, even if the court erred in departing under section 4A1.3, 

Reddick’s aggregate sentence of 200 months is otherwise 

procedurally reasonable. Evans, 526 F.3d at 165.

B.

Reddick next contends that his sentence is substantively 

unreasonable. The district court imposed a 116-month sentence 

on Count One — notwithstanding the advisory Guidelines range of 

51 to 63 months — and, as mandated by statute, also imposed a 

consecutive 84 months on Count Two, for an aggregate sentence of 

200 months. Reddick maintains that the totality of the 

circumstances fail to support such a deviation from the advisory 

Guidelines range, rendering the court’s sentencing decision an 

abuse of discretion. 

In sentencing Reddick, the district court carefully 

assessed the sentencing factors set forth in 18 U.S.C. 

§ 3553(a). It first determined that the seriousness of the 

armed bank robbery underlying Reddick’s convictions warranted an 

above-Guidelines sentence, as did his criminal history, which 

consisted of three prior armed robberies. The court also found 

that Reddick — who had committed the offense of conviction 

within six months of the termination of his parole on a prior 

armed robbery conviction — was a “repeat offender, a recidivist” 
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who lacked “respect for the law.” J.A. 71. Predicated on these 

factors, the court concluded that an above-Guidelines sentence 

was necessary to “promote respect for the law” and to “protect 

the public from [Reddick].” Id. at 70. In explaining its 

sentencing decision, the court emphasized that a 200-month 

sentence was commensurate with the statutory minimum of 264 

months that Reddick would have received if he had been convicted 

on Count Three. Accordingly, the court concluded that an 

aggregate above-Guidelines sentence of 200 months would achieve 

the sentencing goals of § 3553(a). 

In these circumstances, Reddick’s sentence must be deemed 

substantively reasonable. The district court, having carefully 

and thoroughly applied the § 3553(a) sentencing factors, did not 

abuse its substantial discretion in concluding that a withinGuidelines sentence was insufficient. And, although its

deviation from Reddick’s Guidelines range was significant, the 

court offered ample justification for the aggregate sentence 

that it imposed. Accordingly, the court did not substantively 

err in imposing its sentence.

IV.

Pursuant to the foregoing, we reject each of Reddick’s 

contentions and affirm.

AFFIRMED