UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-4898

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

WILLIS SARVIS,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

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

Chief District Judge. (7:11-cr-00083-D-1)

Submitted: December 1, 2014 Decided: February 4, 2015

Before KING, DIAZ, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Mitchell G. Styers, BANZET, THOMPSON & STYERS, PLLC, Warrenton, 

North Carolina, for Appellant. Thomas G. Walker, United States 

Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant 

United States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Willis James Sarvis appeals the district court’s 

judgment imposing a sentence of life plus 360 months following a 

guilty plea to possession of a firearm by a felon, 18 U.S.C. 

§§ 922(g)(1) and 924 (2012) (Count Two); and a jury trial for 

distribution of phencyclidine, 21 U.S.C. § 841(a)(1), (b)(1)(C) 

(2012) (Count One); and possession of a firearm in furtherance 

of a drug trafficking crime, 18 U.S.C. § 924(c) (2012) (Count 

Three). Sarvis raises several challenges to his convictions and 

sentences. We affirm.

I.

First, Sarvis argues that the district court 

erroneously denied his motion to suppress. We review factual 

findings underlying a district court’s denial of a motion to 

suppress for clear error and its legal conclusions de novo. 

United States v. Foster, 634 F.3d 243, 246 (4th Cir. 2011). 

Because the district court denied the motion to suppress, we

construe the evidence in the light most favorable to the 

Government, the party prevailing below. United States v. Black, 

707 F.3d 531, 534 (4th Cir. 2013).

Sarvis does not dispute that the facts as testified to 

at the suppression hearing could establish probable cause for 

his arrest, but argues that this testimony was inherently 

incredible. However, we “defer to the district court’s 
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credibility findings.” United States v. Griffin, 589 F.3d 148, 

150 n.1 (4th Cir. 2009) (internal quotation marks omitted). 

Accordingly, we discern no error in the district court’s denial 

of Sarvis’ motion to suppress.

Next, Sarvis argues that the Government violated his 

due process rights through its discovery disclosures and lack 

thereof; he further contends that the district court should have 

sanctioned the Government. Because he failed to preserve this 

claim by objecting in the district court, our review is for 

plain error. United States v. Olano, 507 U.S. 725, 731-32 

(1993); see United States v. Henderson, 133 S. Ct. 1121, 1126 

(2013). We discern no plain error in the district court’s 

actions here. The court credited the testimony of the 

detective, thereby concluding that no police misconduct 

occurred. Moreover, Sarvis has failed to sufficiently allege 

what, if any, documents were not timely disclosed by the 

Government and what prejudice resulted therefrom.

Sarvis next challenges the sufficiency of the 

indictment as to Count Three, arguing that it erroneously 

charged the two separate crimes contained in the statute as a 

single crime. As Sarvis acknowledges, this claim is also 

reviewed for plain error. See Olano, 507 U.S. at 731-32. We 

“will construe the indictment liberally and indulge every 

intendment in support of its sufficiency.” United States v. 
4

King, 628 F.3d 693, 699 (4th Cir. 2011) (internal alterations 

and quotation marks omitted). 

We discern no error, much less plain error, in the 

indictment. Sarvis argues that the use of the conjunctive, 

rather than disjunctive, in the indictment is insufficient. 

However, “where a statute is worded in the disjunctive, federal 

pleading requires the Government to charge in the conjunctive.” 

United States v. Montgomery, 262 F.3d 233, 242 (4th Cir. 2001).

Sarvis similarly contends that the district court 

constructively amended the indictment when it instructed the 

jury on the elements of Count Three, using the disjunctive even 

though the indictment is worded conjunctively. We have 

previously held, however, that “[w]hen the Government charges in 

the conjunctive, and the statute is worded in the disjunctive, 

the district court can instruct the jury in the disjunctive.” 

United States v. Robinson, 627 F.3d 941, 958 (4th Cir. 2010) 

(internal quotation marks omitted). Accordingly, we find no 

error in the court’s instruction.

II.

Sarvis next raises several challenges to his sentence. 

We review sentences for reasonableness “under a deferential 

abuse-of-discretion standard.” Gall v. United States, 552 U.S. 

38, 41 (2007). We first ensure that the district court 

committed no “‘significant procedural error,’” including 
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improper calculation of the Guidelines range, insufficient 

consideration of the § 3553(a) factors, and inadequate 

explanation of the sentence imposed. United States v. Lynn, 592 

F.3d 572, 575 (4th Cir. 2010) (quoting Gall, 552 U.S. at 51).

Sarvis argues that the district court’s application of 

the second-degree murder cross reference was improper, asserting 

four separate arguments. First, he argues that the death was 

not relevant conduct. Relevant conduct for Guidelines purposes 

includes, as relevant here, “all acts and omissions committed, 

aided, abetted, counseled, commanded, induced, procured, or 

willfully caused by the defendant . . . that occurred during the 

commission of the offense of conviction.” U.S. Sentencing 

Guidelines Manual § 1B1.3(a)(1); see United States v. Ashford, 

718 F.3d 377, 383 (4th Cir. 2013) (holding that murder 

cross-reference applied where the act satisfied § 1B1.3(a)(1)). 

In Ashford, we rejected the very argument Sarvis presses: that 

murder is not a groupable offense under § 1B1.3(a)(2) and 

therefore the cross-reference cannot apply. See 718 F.3d at 

382-83. Therefore, we conclude that the death here was properly 

included as relevant conduct.

Sarvis next challenges the sufficiency of the evidence 

supporting the cross-reference, arguing that he acted in 

self-defense. We review the district court’s factual findings 

for clear error and its legal conclusions de novo. United 
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States v. Medina-Campo, 714 F.3d 232, 234 (4th Cir. 2013). We

conclude, however, that application of the second-degree murder 

cross-reference was proper because Sarvis could not colorably 

assert self-defense under either federal or North Carolina law.

Next, Sarvis asserts that the district court 

improperly double counted the murder by applying the 

cross-reference and relying on the murder to determine his life 

sentence for Count Three. “Double counting occurs when a 

provision of the Guidelines is applied to increase punishment on 

the basis of a consideration that has been accounted for by 

application of another Guideline provision or by application of 

a statute.” United States v. Reevey, 364 F.3d 151, 158 (4th 

Cir. 2004). There was no impermissible double counting here.

Sarvis argues that the district court was required, as 

a matter of due process, to establish the facts supporting the 

cross-reference under a heightened standard of proof. 

(Appellant’s Br. 42-43). However, we have previously held that 

“the due process clause does not require the district court to 

find uncharged conduct by a heightened standard of proof before 

using it as a basis for determining a defendant’s sentence.” 

United States v. Grubbs, 585 F.3d 793, 802 (4th Cir. 2009). We 

therefore conclude that the cross-reference to second-degree 

murder was properly applied.
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Sarvis next asserts that the district court erred by 

treating § 5G1.2(d) of the Guidelines as mandatory. We conclude

that the district court clearly understood that the provisions 

of the Guidelines were advisory and exercised its discretion in 

imposing consecutive sentences.

Sarvis argues that the district court failed to 

adequately explain its chosen sentence. In evaluating the 

sentencing court’s explanation of a selected sentence, we have

consistently held that, while the district court must consider 

the statutory factors and explain the sentence, it need not 

“robotically tick through” every § 3353(a) factor on the record, 

particularly when the court imposes a sentence within the 

properly calculated Guidelines range. United States v. Johnson, 

445 F.3d 339, 345 (4th Cir. 2006). At the same time, the 

district court “must make an individualized assessment based on 

the facts presented.” Gall, 552 U.S. at 50. While the 

“individualized assessment need not be elaborate or lengthy, 

. . . it must provide a rationale tailored to the particular 

case at hand and adequate to permit meaningful appellate 

review.” United States v. Carter, 564 F.3d 325, 330 (4th Cir. 

2009) (internal quotation marks omitted).

The district court here thoroughly explained its 

sentencing decision. The court noted that Sarvis’ crimes were 

extraordinarily serious, and endangered the lives of the people 
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living in the community where the offenses occurred. The 

district court also relied upon Sarvis’ extensive criminal 

history and lack of work history and noted that Sarvis had 

squandered the leniency shown to him in the past.

Finally, Sarvis argues that his sentence is 

substantively unreasonable. If we find a sentence procedurally 

reasonable, we also must examine its substantive reasonableness, 

considering “the totality of the circumstances, including the 

extent of any variance from the Guidelines range.” Gall, 552 

U.S. at 51. The sentence imposed must be “sufficient, but not 

greater than necessary,” to satisfy the purposes of sentencing. 

18 U.S.C. § 3553(a) (2012). A within-Guidelines sentence is 

presumed reasonable on appeal, and the defendant bears the 

burden to “rebut the presumption by demonstrating that the 

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

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

(4th Cir. 2006) (internal quotation marks omitted). When a 

district court imposes a sentence that falls outside of the 

applicable Guidelines range, however, we consider “whether the 

sentencing court acted reasonably both with respect to its 

decision to impose such a sentence and with respect to the 

extent of the divergence from the sentencing range.” United 

States v. Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 

2007).
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We conclude that the district court’s sentence was 

reasonable. Although the court focused on the offense conduct, 

the court noted it had considered all of the § 3553(a) factors. 

The offense conduct here was egregious; Sarvis fired at least 

fifteen rounds from a high-powered assault rifle in a public 

housing complex after a drug deal went bad, killing one person 

and resulting in bullets entering nearby homes and vehicles. As 

the district court noted, Sarvis had committed several prior 

drug trafficking and violent crimes. Thus, we conclude the 

sentence was substantively reasonable.

III.

Accordingly, we affirm the district court’s judgment. 

We dispense with oral argument because the facts and legal 

contentions are adequately presented in the material before this 

court and argument will not aid the decisional process.

AFFIRMED