PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                      No. 16-4077


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

LASHAUN CHRISTOPHER BOLTON,

                    Defendant - Appellant.



                                      No. 16-4078


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

LASHAUN CHRISTOPHER BOLTON,

                    Defendant - Appellant.



Appeals from the United States District Court for the Middle District of North Carolina,
at Greensboro. William L. Osteen, Jr., Chief District Judge. (1:15-cr-00243-WO-1;
1:14-cr-00433-WO-4)


Argued: May 11, 2017                                             Decided: June 7, 2017
Before NIEMEYER, MOTZ, and THACKER, Circuit Judges.


Affirmed by published opinion. Judge Thacker wrote the opinion, in which Judge
Niemeyer and Judge Motz joined.


ARGUED: Cheryl Denise Andrews, HOLTON LAW FIRM, PLLC, Winston-Salem,
North Carolina, for Appellant. Sandra Jane Hairston, OFFICE OF THE UNITED
STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF: Ripley
Rand, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.




                                      2
THACKER, Circuit Judge:

       Lashaun Christopher Bolton (“Appellant”) appeals his consolidated sentence for

convictions in two separate cases -- one involving marijuana distribution and the other

involving cocaine distribution. Following his indictment and arrest on the marijuana

charges, law enforcement discovered firearms, cash, and more marijuana in Appellant’s

bedroom.    Then, while released on bond for the marijuana charges, Appellant was

arrested on the cocaine charges.

       At the consolidated sentencing hearing, Appellant attempted to show that the

firearms were connected to hunting in order to avoid a sentence enhancement for

possessing a firearm in connection with drug distribution. But the district court rejected

this claim and applied the enhancement. Next, although Appellant sought an offense-

level reduction given his lack of criminal history, the district court also rejected this

argument, holding Appellant was ineligible for the reduction because he possessed a

firearm in connection with his offense. Additionally, given Appellant’s arrest while

released on bond, the district court refused to reduce Appellant’s offense level for

acceptance of responsibility, despite cooperation he provided the Government. Finally,

the court varied upward from Appellant’s Sentencing Guideline range by 40 months.

       Appellant now challenges each of these sentencing determinations. Finding no

reversible error, we affirm.




                                            3
                                            I.

                                            A.

      On November 24, 2014, a grand jury in the Middle District of North Carolina

returned a multi-count indictment charging multiple defendants, including Appellant,

with conspiracy to distribute marijuana, in violation of 21 U.S.C. §§ 846 and 841(a)(1)

(the “Marijuana Indictment”). Specifically, the Marijuana Indictment charged Appellant

with conspiring to distribute marijuana and using a communication facility to facilitate

the conspiracy. On December 4, 2014, Appellant was arrested pursuant to the Marijuana

Indictment. He consented to a search of his residence. During the search, a 12-gauge

shotgun and 22-250 bolt action rifle were discovered in Appellant’s bedroom along with

boxes of ammunition, approximately 400 grams of marijuana, and $912 in cash. A

records search indicated that the shotgun was reported stolen. On December 16, 2014,

Appellant was released on bond.

      On February 25, 2015, Appellant pled guilty to conspiracy to distribute marijuana

and using a communication facility to facilitate drug trafficking per the Marijuana

Indictment. The factual basis in support of the plea agreement stated that throughout

September 2012, law enforcement intercepted cellular phone calls between Appellant and

another individual indicating that the two conspired to distribute around eight pounds of

marijuana “during the period alleged in the indictment.” J.A. 44–47. 1 The conspiracy


      1
          Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this
appeal.


                                             4
alleged in the indictment lasted “[f]rom in or about 2012, continuing up to and including

in or about February 2013.” 

2 Following the guilty plea, the district court also

granted Appellant’s motion to modify his terms of release to remove an electronic

location monitor so as to allow him to return to work. The court scheduled a sentencing

hearing on the Marijuana Indictment for June 3, 2015.

                                            B.

       On April 18, 2015, Drug Enforcement Administration agents discovered Appellant

was involved in cocaine distribution. As a result, on April 21, 2015, the court revoked

Appellant’s bond and issued a warrant for his arrest. Two days later, on April 23, 2015,

Appellant surrendered to law enforcement. After Appellant’s surrender, on May 6, 2015,

he met with law enforcement for debriefing and provided information about the other

individuals involved in the cocaine distribution. On May 18, 2015, the district court

continued Appellant’s sentencing for the marijuana charges to August 26, 2015.

       On June 30, 2015, while Appellant was awaiting sentencing on the marijuana

charges, a grand jury in the Middle District of North Carolina returned a second

indictment against Appellant and other defendants, charging them with conspiracy to

distribute 500 grams or more of a substance containing cocaine hydrochloride, in

violation of 21 U.S.C. §§ 846 and 841 (the “Cocaine Indictment”).


       2
        On September 17, 2012, law enforcement stopped a vehicle in which Appellant
was a passenger for a traffic violation. See J.A. 46. Law enforcement discovered 428
grams of marijuana in the vehicle along with $5,942 in cash on Appellant’s person;
Appellant was arrested after admitting the marijuana was his. See 

August 7, 2015, Appellant pled guilty to the Cocaine Indictment. The factual

basis for Appellant’s plea provided that on April 16, 2015, Appellant sold 3.4 grams of

marijuana to an individual working as a confidential informant and offered to sell the

individual a kilogram of cocaine hydrochloride. Then, over the next two days, Appellant

facilitated a transaction of two kilograms of cocaine to an undercover officer.

                                            C.

       The district court consolidated Appellant’s marijuana and cocaine cases and set a

sentencing hearing for January 12, 2016. Pursuant to the United States Sentencing

Guidelines (the “Guidelines”), the presentence report (“PSR”) grouped Appellant’s

offenses to arrive at a base offense level of 30, established by the amounts of drugs

attributable to him. The PSR added two offense levels for possession of a firearm during

the offense, and two offense levels for maintaining premises for drug distribution. The

PSR did not recommend a downward adjustment for acceptance of responsibility because

Appellant did not withdraw from criminal activity after his release on the marijuana

charges. The PSR thus arrived at a total offense level of 34.

       At the consolidated sentencing hearing, Appellant objected to the proposed drug

amounts attributable to him as well as to the enhancements for firearm possession and

maintaining premises for drug distribution. Appellant also objected to the PSR’s failure

to propose downward adjustments for acceptance of responsibility or for a “safety valve”




                                             6
reduction, which allows departures from otherwise mandatory sentences for qualifying

first-time offenders. United States v. Fletcher, 

, 56 (4th Cir. 1996). 3

       In response, the Government presented testimony from an investigating agent to

substantiate the amount of drugs attributable to Appellant.           To rebut the firearm

possession enhancement and support a safety valve reduction, Appellant called his

cousin, Santonio Bolton (“Santonio”), who testified that the firearms were for hunting

purposes. To corroborate Appellant’s hunting scenario, Santonio testified that he grew

up hunting with Appellant, and that Appellant acquired the guns in question during

hunting season. Santonio also testified that the rifle belonged to another cousin and that

Appellant purchased the reportedly stolen shotgun. The defense also submitted a hunting

license Appellant purchased in October of 2013 that expired the following year. Further,

the defense pointed out that the firearms were discovered outside of the timeframe of the

conspiracy alleged in the Marijuana Indictment. Additionally, Appellant argued he was

entitled to an offense-level reduction for acceptance of responsibility based on his prompt

surrender to authorities, cooperation, and agreement to plead guilty.

       The district court sustained Appellant’s objection to the amount of drugs

attributable to him but overruled each of his remaining objections. As to the firearm

possession enhancement, the district court discredited Santonio’s testimony and reasoned

that although law enforcement discovered the guns outside of the timeframe of illegal

activity alleged in the Marijuana Indictment, the surrounding circumstances suggested

       3
           The PSR did not address Appellant’s eligibility for a safety valve reduction.


                                               7
Appellant was dealing marijuana when law enforcement arrested him and discovered the

firearms. And “because of the weapon enhancement,” the district court held, “the safety

valve would not . . . apply.” J.A. 178. Finally, the district court declined to adjust

Appellant’s sentence for acceptance of responsibility because he resumed his criminal

activity after his first arrest.

       In light of these rulings, the court arrived at a total offense level of 30 and criminal

history category of I, resulting in a final Guidelines range of 97 to 121 months’

imprisonment.      The district court then varied upward from this advisory range and

sentenced Appellant to 161 months’ imprisonment. To arrive at this sentence, the court

imposed 40 months for both counts related to the marijuana charges to run concurrently,

and 121 months for the cocaine charges to run consecutive to the sentence for the

marijuana charges. Appellant timely appealed.

                                              II.

       “As a general matter, in reviewing any sentence whether inside, just outside, or

significantly outside the Guidelines range,” we review for an abuse of discretion. United

States v. McDonald, 

, 643 (4th Cir. 2017) (internal quotation marks omitted)

(quoting Gall v. United States, 

, 41 (2007)). Pursuant to this standard, we

review the district court’s legal conclusions de novo and factual findings for clear error.

United States v. Gomez-Jimenez, 

, 379–80 (4th Cir. 2014), as corrected

(Apr. 29, 2014). We first review for procedural errors; “[i]f and only if,” we find no such

procedural errors may we assess the substantive reasonableness of a sentence.



                                              8


(alteration in original) (quoting United States v. Carter, 

, 328 (4th Cir. 2009)).

                                            III.

                                            A.

       We begin by reviewing two facets of the district court’s sentencing procedure: (1)

its offense level enhancement pursuant to Guidelines § 2D1.1(b)(1), which allows an

enhancement if a firearm “was possessed” in connection with a drug trafficking offense

unless the connection between the firearm and the offense was “clearly improbable”; and

(2) its refusal to decrease Appellant’s offense level pursuant to Guidelines

§ 2D1.1(b)(17), which allows a safety valve decrease if, in relevant part, a defendant

“did not . . . possess a firearm . . . in connection with the offense,” § 5C1.2(a)(2). As to

procedural sentencing issues, we “must reverse if we find error, unless . . . the error was

harmless.” 

. A procedural error is harmless if “(1) the

district court would have reached the same result even if it had decided the guidelines

issue the other way, and (2) the sentence would be reasonable even if the guidelines issue

had been decided in the defendant’s favor.” 

(internal quotation marks omitted)

(quoting United States v. Savillon-Matute, 

, 123 (4th Cir. 2011)).

       Appellant argues the district court erred on both issues, and even if it did not err

on the firearm enhancement issue, the district court erroneously assumed that the

enhancement foreclosed a safety valve reduction. We conclude, however, that the district

court did not err by imposing the firearm enhancement, and even if the district court erred



                                             9
by assuming it could not grant a safety valve reduction because of the firearm

enhancement, any such error was harmless.

                                            1.

      For drug trafficking offenses, the Guidelines define various “Specific Offense

Characteristics” providing for offense-level enhancements where applicable.        United

States v. Manigan, 

, 628 (4th Cir. 2010) (quoting U.S.S.G. § 2D1.1(b)). The

first of these enhancements reads in full, “If a dangerous weapon (including a firearm)

was possessed, increase by two levels.” U.S.S.G § 2D1.1(b)(1). With regard to this

enhancement, Guidelines commentary indicates that it applies if a defendant possesses a

firearm in connection with a drug trafficking offense: “The enhancement should be

applied if the weapon was present, unless it is clearly improbable that the weapon was

connected with the offense.” 

Thus, for the enhancement to apply, the

Government carries the initial burden of “proving possession of a weapon in connection

with drug activities” by a preponderance of the evidence. 

n.8.

If the Government satisfies this burden, the defendant may avoid the enhancement by

showing that the weapon’s link to his or her drug activities was “clearly improbable.” 

for the Government to meet its burden, it must prove that the defendant

possessed a weapon “in connection with drug activity that was part of the same course of

conduct or common scheme as the offense of conviction.” 

–29

(quoting United States v. McAllister, 

, 233–34 (4th Cir. 2001)). Although

the Government need not prove “precisely concurrent” drug trafficking and weapon

possession, United States v. Johnson, 

, 386 (4th Cir. 1991), it must at least

                                            10
prove “a temporal and spatial relation” linking “the weapon, the drug trafficking activity,

and the defendant,” United States v. Clark, 

, 1241 (10th Cir. 2005)

(quoting United States v. Roederer, 

, 982 (10th Cir.1993)) (rejecting

enhancement where defendant possessed gun 15 months after offense of conviction but

admitted to drug sales two days earlier); accord United States v. Partida, 

,

562 (5th Cir. 2004). In circumstances where the underlying offense is conspiracy to

distribute drugs, we have held that discovery of a weapon “in a place where the

conspiracy was carried out or furthered” is sufficient to link the weapon to the

conspiracy. United States v. Apple, 

, 338 (4th Cir. 1992).

       If the Government meets the initial burden, a defendant may prove that such link

is clearly improbable by presenting circumstantial evidence, such as the type of weapon

involved and its location or accessibility. See 

. For example,

courts agree that handguns are more likely to be connected with drug trafficking than

long guns. See 

Indeed, commentary to the Guidelines provides

such an example: “the enhancement would not be applied if the defendant, arrested at the

defendant’s residence, had an unloaded hunting rifle in the closet.”        § 2D1.1 cmt.

n.11(A).

                                            a.

       Here, law enforcement discovered the firearms underlying Appellant’s sentence

enhancement in December 2014, almost two years after the end of the marijuana

conspiracy to which Appellant plead guilty, which, as stated in the Marijuana Indictment,

continued until February 2013.      Because law enforcement located the firearms in

                                            11
Appellant’s bedroom along with 400 grams of marijuana and $912 in cash, however, this

temporal stretch is insufficient to sever the discovery of the firearms from “the same

course of conduct or common scheme as the offense of conviction.” 

–29 (citation omitted). Indeed, we have held that the conduct relevant to such

enhancement is not confined to the crime of conviction, but may include drug amounts,

money from drug sales, and guns possessed while engaging in drug sales, “related to,

though not distinct from, the crime of conviction.” United States v. Falesbork, 

, 720 (4th Cir. 1993) (collecting cases).

                                               b.

       As to Appellant’s attempt to show that the firearms were connected to hunting and

thus any link to drug distribution was “clearly improbable,” 

n.8, the district court discredited Santonio’s testimony because he was unaware that

Appellant was involved in the drug trade.           This, in the court’s view, rendered the

testimony insufficient to overcome the fact that the firearms were located alongside

amounts of cash and drugs indicating illicit trafficking. We “accord the district court’s

credibility determinations great deference.” United States v. McKenzie-Gude, 

, 463 (4th Cir. 2011) (internal quotation marks omitted) (quoting United States v.

Layton, 

, 334 (4th Cir. 2009)). Thus, although the discovery of the long

guns in Appellant’s residence nearly two years after the marijuana conspiracy alone

might not suffice to trigger the enhancement, see § 2D1.1 cmt. n.11(A), viewed alongside

the cash and marijuana at the scene of discovery, the link between the firearms and



                                               12
Appellant’s offense was not clearly improbable. We therefore affirm the district court’s

imposition of a firearm enhancement pursuant to § 2D1.1(b)(1).

                                             2.

       In drug trafficking cases, the Guidelines grant a reduction of two offense levels if

the defendant meets the criteria of Guidelines § 5C1.2(a)(1)–(5).            See U.S.S.G.

§ 2D1.1(b)(17). This is referred to as the “safety valve” reduction because it allows

shorter sentences for first-time offenders otherwise facing mandatory minimum

sentences. See United States v. Fletcher, 

, 56 (4th Cir. 1996). To receive the

reduction, a defendant must prove by a preponderance of the evidence that he or she

satisfies each of § 5C1.2(a)’s five criteria. See United States v. Aidoo, 

, 607

(4th Cir. 2012); United States v. Thompson, 

, 455 (4th Cir. 2009).

                                             a.

       Here, the parties only dispute whether Appellant meets one of the safety valve

criteria -- that Appellant “did not . . . possess a firearm . . . in connection with the

offense.”   § 5C1.2(a)(2). 4   The Government argues the safety valve reduction is

inapplicable because Appellant “failed to show that it was clearly improbable that his

possession of the weapons was connected to the charged offense.” Appellee’s Br. 18. In

       4
        The other four criteria are as follows: (1) “the defendant does not have more than
1 criminal history point”; (2) “the offense did not result in death or serious bodily injury
to any person”; (3) “the defendant was not an organizer, leader, manager, or supervisor of
others in the offense”; and (4) “not later than the time of the sentencing hearing, the
defendant has truthfully provided to the Government all information and evidence the
defendant has concerning the offense or offenses that were part of the same course of
conduct or of a common scheme or plan . . . .” § 5C1.2(1), (3)–(5).


                                            13
doing so, however, the Government invokes the standard of proof applicable to a weapon

enhancement rather than a safety valve reduction, that is, “clearly improbable” rather than

“preponderance of the evidence.” This is not a distinction without a difference.

       Indeed, at least five of our sister circuits have held that a weapon enhancement

pursuant to § 2D1.1(b)(1) does not foreclose a safety valve reduction despite

§ 5C1.2(a)(2)’s requirement that a defendant seeking the reduction did not possess a

firearm in connection with the offense. See, e.g., United States v. Carillo-Ayala, 

, 91 (11th Cir. 2013); United States v. Anderson, 

, 90 (1st Cir. 2006);

United States v. Zavalza-Rodriguez, 

, 1188 (10th Cir. 2004); United States

v. Bolka, 

, 914 (6th Cir. 2004); United States v. Nelson, 

, 549–

51 (9th Cir. 2000).    These holdings are based on the different standards of proof

applicable to, on one hand, overcome a § 2D1.1(b)(1) firearm enhancement, and on the

other hand, satisfy § 5C1.2(a)(2) to obtain a safety valve reduction. Whereas a defendant

may be unable to show that any connection between a firearm and an offense is “clearly

improbable,” the same defendant might be able to prove “by a preponderance of the

evidence” that the firearm was not connected with the offense to satisfy § 5C1.2(a)(2).

See, e.g., 

; 

.

                                            b.

       At Appellant’s sentencing hearing, the district court did not clearly apply separate

analyses to determine whether the firearm enhancement applied as opposed to the safety

valve reduction. Compare J.A. 178 (“[B]ecause of the weapon enhancement, the safety

valve would not otherwise apply regardless of where the Court falls in terms of

                                            14
acceptance of responsibility.”), with 

(“[I]n connection with [Appellant’s

marijuana distribution, Appellant] possessed a firearm.”). Nevertheless, even if the court

circumscribed its analysis on the safety valve reduction in light of the weapon

enhancement, we conclude that such error was harmless.

       The district court’s decision in this regard was well reasoned.           The court

discredited Appellant’s witness, made note of the fact that the proffered hunting license

was expired when law enforcement discovered the firearms, and reasoned that the status

of the shotgun as reportedly stolen “undermines any suggestion of a legitimate

acquisition.” J.A. 180. Given these factual findings, Appellant failed to show by a

preponderance of the evidence that the firearms were not connected to his drug

distribution, which the cash and drugs located in the very same bedroom evinced.

Therefore, we conclude that even assuming the district court erred in its safety valve

analysis, any such error was harmless, and we affirm the district court’s refusal to grant a

safety valve reduction. See 

.

                                            B.

       We next consider the district court’s refusal to reduce Appellant’s offense level for

acceptance of responsibility. Section 3E1.1(a) of the Guidelines provides for a two-level

reduction “[i]f [a] defendant clearly demonstrates acceptance of responsibility for [an]

offense.” “To earn the reduction, a defendant must prove to the court by a preponderance

of the evidence ‘that he has clearly recognized and affirmatively accepted personal

responsibility for his criminal conduct.’” United States v. Dugger, 

, 239

(4th Cir. 2007) (quoting United States v. Nale, 

, 1005 (4th Cir. 1996)). In

                                            15
determining whether a defendant has satisfied this standard, a sentencing court may

consider, in relevant part, (a) truthful admissions to the underlying offenses or related

conduct; (b) voluntary withdrawal from crime; (c) voluntary and prompt surrender to

authorities; and (d) the timeliness of the defendant’s apparent acceptance of

responsibility. See § 3E1.1(a) cmt. n.1.

       Here, Appellant argues the district court erred in refusing to grant a reduction

because he voluntarily surrendered to authorities after the court revoked his pretrial

release, admitted to his offense conduct while debriefing with law enforcement, and

promptly pled guilty to the offenses. But this argument understates Appellant’s conduct.

       Despite the post-apprehension conduct Appellant highlights, he fails to mention

that after his first arrest, he resumed distributing drugs. Indeed, while under indictment

and on bond, Appellant upped the ante and distributed cocaine in addition to marijuana.

We have upheld denials of reductions for acceptance of responsibility where, as here, the

defendant continues criminal activity after apprehension, indictment, or guilty plea. See,

e.g., 

(affirming denial of reduction where defendant admitted

dealing drugs before and after incarceration); United States v. Kidd, 

, 34 (4th

Cir. 1993) (upholding denial of reduction where defendant continued cocaine use and

distribution after indictment and plea agreement).

       In light of Appellant’s resumption of criminal activity after his first arrest, we hold

that the district court did not err in refusing to grant a reduction. This is especially so

given the “great deference” we accord to sentencing courts in making such



                                             16
determinations. § 3E1.1 cmt. n.5. We therefore affirm the district court’s denial of a

sentence reduction for acceptance of responsibility.

                                            C.

       Finally, we assess the substantive reasonableness of Appellant’s sentence, taking

note of the district court’s upward variance from the advisory range of 97 to 121 months’

imprisonment to the sentence imposed of 161 months’ imprisonment. A sentencing court

must “impose a sentence sufficient, but not greater than necessary,” to serve the purposes

of the Guidelines and factors enumerated in 18 U.S.C. § 3553(a). 

(citation omitted). Those factors include the seriousness of the offense, promotion of

respect for the law, deterrence, protection of the public, and correctional treatment for a

defendant. See § 3553(a)(2).

       We review a variant sentence to determine the reasonableness of imposing such

sentence and the extent of the variance from the Guidelines range. See United States v.

Washington, 

, 943–44 (4th Cir. 2014). We will vacate such sentence if its

stated reasoning is inadequate or if it relies on improper factors. See United States v.

Hernandez-Villanueva, 

, 123 (4th Cir. 2007). “We must defer to the district

court and affirm a reasonable sentence, even if we would have imposed something

different.” 

–44 (citing United States v. McNeill, 

, 166 (4th Cir. 2010)).

       Here, although the district court varied upward from Appellant’s Guidelines range

by 40 months, the sentence was not unreasonable. In arriving at its sentence, the district

court relied on factors enumerated in § 3553(a)(2), including “the need to deter criminal

                                            17
conduct, protect the public from further crimes . . . , and . . . to promote respect for the

law.” J.A. 284. The district court noted Appellant’s minimal criminal history and that he

“deserve[d] some credit for pleading guilty in both cases and admitting his conduct.” 

district court emphasized that Appellant resumed his drug distribution

only two months after his September 2012 arrest, and again two months after his

December 2014 arrest while released on bond. In addition, the district court recounted

how Appellant requested a modification to the terms of his release allowing him to

remove an electronic monitor and return to work, but shortly after the court granted this

request, law enforcement discovered Appellant was again dealing drugs. The district

court reasoned that neither Appellant’s Guidelines calculation nor his criminal history

adequately took account of these particular facts. Taken as a whole, the district court

provided adequate reasoning for its sentence and did not rely on improper factors. See

.

       As to the length of Appellant’s sentence and its variance from his Guidelines

range, we have upheld comparatively greater variances given a firm application of the

§ 3553 factors. See, e.g., 

(upholding sentence

three times as long as upward end of Guidelines range given district court’s conclusion

that range did not fully account for defendant’s criminal behavior). Appellant’s sentence

was therefore substantively reasonable.     We thus affirm the district court’s upward

variance and ultimate sentence.




                                            18
                                   IV.

Based on the foregoing, we affirm Appellant’s sentence.

                                                          AFFIRMED




                                   19