United States v. James McGowan , 629 F. App'x 531 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4134
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JAMES MCGOWAN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Timothy M. Cain, District Judge.
(6:13-cr-00905-TMC-1)
Submitted: October 29, 2015 Decided: November 17, 2015
Before DUNCAN, AGEE, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Christopher R. Antley, DEVLIN & PARKINSON, P.A., Greenville,
South Carolina, for Appellant. Carrie Fisher Sherard, Assistant
United States Attorney, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James McGowan appeals from his convictions and 192-month
sentence following a jury trial. The jury found him guilty of
armed bank robbery, conspiracy to use a firearm in furtherance
of a crime of violence, and brandishing a firearm during a crime
of violence. On appeal, McGowan’s counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967),
concluding that there are no meritorious issues for appeal but
questioning whether the district court should have dismissed the
superseding indictment and whether the leadership enhancement
was erroneous. The Government has declined to file a brief.
McGowan has filed a pro se supplemental brief, raising several
additional issues. After careful consideration of the entire
record, we affirm.
I.
McGowan first contends that that both of his indictments
were improper because the Government misrepresented facts to the
grand jury. However, by failing to challenge the indictment in
the district court in a timely manner under Fed. R. Crim. P.
12(b)(3), McGowan has waived his right to raise these issues on
appeal. See United States v. Vernon, 723 F.3d 1234, 1261 (11th
Cir. 2013) (holding that, absent good cause, untimely challenge
to indictment is waived).
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II.
McGowan next contends that the district court plainly erred
in admitting a firearm expert’s testimony regarding his
determination that the item one of the robbers is holding in the
bank video pictures was possibly a firearm. However, McGowan
failed to object to the testimony below, and thus, as counsel
concedes, this claim is reviewed for plain error. We conclude
that the testimony of other witnesses that one or both of the
robbers carried a firearm rendered any error in the expert’s
identification harmless.
III.
McGowan next avers that his sentence was improperly
enhanced under U.S. Sentencing Guidelines Manual
§ 2B3.1(b)(4)(B) (2013). Section 2B1.3(b)(4)(B) provides for a
two-offense-level increase when any person “was physically
restrained to facilitate commission of the offense or to
facilitate escape.” The term “physically restrained,” is
defined in Application Note 1(K) to § 1B1.1 as “the forcible
restraint of the victim such as by being tied, bound, or locked
up,” whereas the background commentary to § 2B3.1 states more
definitely that the enhancement applies when a victim “was
physically restrained by being tied, bound, or locked up.”
However, the § 1B1.1 definition is not limited to the examples
given. See United States v. Stokley, 881 F.2d 114, 116 (4th
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Cir. 1989). In fact, we view the enhancement “broadly, applying
it when the defendant points the gun at the victim, thereby
restricting the victim’s movements and ensuring the victim’s
compliance with the desires of the defendant.” United States v.
Dimache, 665 F.3d 603, 606-07 (4th Cir. 2011).
Here, the robbers pushed a bank teller down towards the
floor and grabbed a customer and told her to “get down” in front
of the counter. In addition, the robbers brandished at least
one gun and threatened to shoot, essentially restraining
everyone in the bank from leaving or preventing them from taking
other action. Accordingly, this enhancement was properly
applied.
IV.
McGowan challenges the district court’s two-offense-level
enhancement under USSG § 3C1.1 for being an “organizer” of the
criminal activity. Our review of the district court’s
assessment of a leadership role enhancement is for clear error.
See United States v. Thorson, 633 F.3d 312, 317 (4th Cir. 2011).
The Guidelines provide for a two-level adjustment where the
defendant is found to be an organizer, leader, manager, or
supervisor in a conspiracy that involves less than five
participants. USSG § 3B1.1(c). In determining whether the
defendant exercised control over at least one other participant,
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see United States v. Rashwan, 328 F.3d 160, 166 (4th Cir. 2003),
the court should consider:
the exercise of decision making authority, the nature
of participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a
larger share of the fruits of the crime, the degree of
participation in planning or organizing the offense,
the nature and scope of the illegal activity, and the
degree of control and authority exercised over others.
USSG § 3B1.1(c) cmt. n.4.
The district court found an accomplice’s testimony to be
credible, and that witness stated at trial that, at several key
points during the crime, he followed McGowan’s directions and
decisions. Moreover, McGowan was the point of contact for the
two others involved in the crime and the glue holding the three
together. On the basis of this evidence, we conclude that the
district court did not commit clear error in imposing the
leadership enhancement.
V.
Finally, McGowan claims that the Government improperly had
various investigators do separate analyses on the cell phones
involved. McGowan also asserts that one witness testified to
preparing a map that he did not prepare. However, McGowan has
provided no specifics as to how the analyses or maps are
different or how the multiple investigators prejudiced him.
Moreover, the reports and maps were not objected to at trial.
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Accordingly, we conclude that McGowan suffered no prejudice from
any error.
VI.
In accordance with Anders, we have reviewed the entire
record in this case for meritorious issues and have found none.
Accordingly, we affirm McGowan’s convictions and sentence. This
court requires that counsel inform his client, in writing, of
his right to petition the Supreme Court of the United States for
further review. If the client requests that a petition be
filed, but counsel believes that such a petition would be
frivolous, then counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that
a copy thereof was served on the client.
AFFIRMED
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