UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4680

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

RODNEY BURRELL,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. James C. Dever III, 

Chief District Judge. (5:10-cr-00056-D-1)

Argued: September 20, 2013 Decided: October 17, 2013

Before MOTZ, SHEDD, and THACKER, Circuit Judges.

Affirmed by unpublished opinion. Judge Shedd wrote the opinion,

in which Judge Motz and Judge Thacker joined.

ARGUED: Mitchell G. Styers, BANZET, THOMPSON & STYERS, PLLC, 

Warrenton, North Carolina, for Appellant. Joshua L. Rogers, 

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

for Appellee. ON BRIEF: 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.

Unpublished opinions are not binding precedent in this circuit.
2

SHEDD, Circuit Judge:

Rodney Burrell pled guilty without a plea agreement to 

possession with intent to sell 5 grams or more of cocaine base

and aiding and abetting another in the same, in violation of 21 

U.S.C. § 841(a)(1) and 18 U.S.C. § 2.1 The district court 

sentenced Burrell to 210 months imprisonment. The court upwardly 

departed from a guidelines range of 46 to 57 months to a range 

of 168 to 210 months under § 4A1.3(a)(1), on the ground that 

Burrell’s criminal history category “woefully fail[ed] to 

capture the appropriate criminal history category for 

[Burrell].” J.A. 97. In addition, the court stated that even if 

the upward departure was erroneous, it would impose the same 

sentence as a variance under the factors set forth in 18 U.S.C. 

§ 3553(a). J.A. 125. Burrell now appeals his sentence. For the 

reasons set forth below, 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 

 1 The district court originally sentenced Burrell as a 

career offender, sentencing him to 300 months imprisonment and 8 

years supervised release. However, Burrell appealed the original 

sentence on the ground that one of his prior crimes, the North 

Carolina marijuana conviction, could not serve as a predicate 

for the career offender enhancement. On appeal, we affirmed 

Burrell's conviction, vacated his sentence, and remanded for 

resentencing in light of United States v. Simmons, 649 F.3d 237 

(4th Cir. 2011) (en banc). 
3

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.

Burrell challenges his sentence on two grounds: (1) the 

district court procedurally erred in upwardly departing because 

his criminal history category did not underrepresent the 

seriousness of his criminal history, and the court failed to 

adequately explain incrementally why it chose the criminal 

history category and offense level that it did; and (2) the 

sentence is substantively unreasonable. The government argues

that we should affirm the sentence because the upward departure 
4

is proper under the guidelines and, alternatively, the variance

sentence is reasonable.2

In United States v. Evans, 526 F.3d 155, 165 (4th Cir. 

2008) (emphasis in original), we explained that “[w]hen . . . a 

district court offers two or more independent rationales for its 

[sentencing] deviation, an appellate court cannot hold the 

sentence unreasonable if the appellate court finds fault with 

just one of these rationales.” Affirming the sentence, we 

stated: 

As explained above, the record provides abundant 

support for the district court’s conclusion that the § 

3553(a) factors support the sentence. Accordingly, 

even assuming the district court erred in applying the 

Guideline[s] departure provisions, Evans’ sentence, 

which is well-justified by § 3553(a) factors, is 

reasonable.

Id.; see also Rivera-Santana, 668 F.3d at 104 (in affirming the 

sentence, we held that even if the district court erroneously 

departed upward from the advisory guideline range, the asserted 

departure error was harmless “because the upward variance based 

on the § 3553(a) factors justified the sentence imposed”); 

 2 “The terms ‘variance’ and ‘departure’ describe two 

distinct sentencing options available to a sentencing court.”

United States v. Rivera-Santana, 668 F.3d 95, 100 n.6 (4th 

Cir.), cert. denied, 133 S. Ct. 274 (2012). A departure sentence 

is imposed under the framework set out in the sentencing 

guidelines, but a variance sentence is considered to be “a nonGuidelines sentence” that is nevertheless justified under the 

sentencing factors set forth in § 3553(a). Id.
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United States v. Grubbs, 585 F.3d 793, 804 (4th Cir. 2009) 

(holding that even if the district court erred in its departure 

analysis, “the resulting sentence is procedurally reasonable 

because the district court adequately explained its sentence on 

alternative grounds supporting a variance sentence, by reference 

to the . . . § 3553(a) factors”).3 The same reasoning applies 

here. We do not need to address whether the court properly 

departed under § 4A1.3(a)(1) because it explicitly stated it 

would apply the same sentence as an alternative variance 

sentence considering the § 3553(a) factors, J.A. 125, and the 

variance sentence is reasonable.

Burrell has an extensive criminal history, which the 

district court discussed at great length when considering the § 

3553(a) factors. The court noted that Burrell’s criminal past 

includes, among other things, a voluntary manslaughter 

conviction, gang activity, an “abysmal prison record” with 13 

infractions, and a conviction for possession with intent to sell 

and deliver marijuana. J.A. 88–92. The court described Burrell 

 3 See also United States v. Hargrove, 701 F.3d 156 (4th Cir. 

2012), cert. denied, 133 S. Ct. 2403 (2013); United States v. 

Savillon-Matute, 636 F.3d 119 (4th Cir.), cert. denied, 132 S.

Ct. 454 (2011). In both cases, we applied the “assumed error 

harmlessness inquiry” and affirmed sentences without considering 

the merits of the claimed procedural sentencing errors because 

the record established that the district courts would have 

reached the same result, which was reasonable, regardless of the 

errors.
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as having “an extraordinary level of recidivism, a commitment to 

recidivism, a commitment to being a drug dealer, a commitment 

that is not good for him or society or anyone.” J.A. 92. The 

court stated “there is a tremendous need to protect the public” 

and for individual incapacitation here because “if Mr. Burrell 

were released any time remotely soon and he were back out . . . 

he would get right back to it.” J.A. 122. The court also 

discussed the “need to promote respect for the law,” the need 

for “just punishment,” and the need for deterrence, noting: “I 

think a person who repeatedly gets chances and leniency and 

opportunities and rejects them is saying to society and to the 

legal system that they don’t have any respect for it.” J.A. 122. 

The court also considered Burrell’s recently improved behavior

while incarcerated but was not convinced that this alone wiped 

away the rest of his extensive criminal past. J.A. 104–05; see

Pepper v. United States, 131 S. Ct. 1229, 1241–42 (2011) (“[W]e 

think it clear that when a defendant's sentence has been set 

aside on appeal and his case remanded for resentencing, a 

district court may consider evidence of a defendant's 

rehabilitation since his prior sentencing . . . . A categorical 

bar on the consideration of postsentencing rehabilitation 

evidence would directly contravene Congress' expressed intent in 

§ 3661.”).
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The district court has broad discretion in sentencing 

decisions, see Gall v. United States, 552 U.S. 38, 51 (2007), 

and based on the court’s careful consideration of the § 3553(a) 

factors, we cannot say that the alternative variance sentence is 

unreasonable. Therefore, even if the court was incorrect in 

upwardly departing under § 4A1.3(a)(1), that error would be 

harmless because the variance sentence based on the § 3553(a)

factors is reasonable and thus “justifie[s] the sentence 

imposed.” Rivera-Santana, 668 F.3d at 104. We therefore affirm 

the sentence.

AFFIRMED