United States v. Wall , 214 F. App'x 318 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4487
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHN CARROLL WALL, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Senior
District Judge. (1:04-cr-00008-WLO-2)
Submitted: December 18, 2006 Decided: January 23, 2007
Before NIEMEYER, MICHAEL, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert L. McClellan, IVEY, MCCLELLAN, GATTON & TALCOTT, L.L.P.,
Greensboro, North Carolina, for Appellant. Anna Mills Wagoner,
United States Attorney, Paul A. Weinman, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted John Carroll Wall, Jr. of bank robbery,
in violation of 18 U.S.C. § 2113(a) (2000), armed bank robbery, in
violation of 18 U.S.C. § 2113(d) (2000), and the carrying and use
of firearms during and in relation to a crime of violence, in
violation of 18 U.S.C. § 924(c)(1)(A)(ii) (2000). The district
court initially sentenced Wall to 108 months’ imprisonment on the
second count* and eighty-four months on the third count. On
appeal, we affirmed Wall’s convictions, vacated Wall’s sentence on
the second count, and remanded the case to the district court for
resentencing consistent with United States v. Booker, 543 U.S. 220(2005).
Treating the sentencing guidelines as advisory, the
district court on remand again imposed a two-level enhancement for
organizing and leading a criminal activity involving fewer than
five participants, pursuant to U.S. Sentencing Guidelines Manual
(“USSG”) § 3B1.1(c) (2003). After considering the factors set
forth in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006), the
district court sentenced Wall to 100 months’ imprisonment on the
second count. Wall filed a timely appeal. He contends the
district court’s factual finding concerning the § 3B1.1(c)
*
The first count, a lesser-included offense, merged with the
second count.
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enhancement on the second count was clearly erroneous. Finding no
error, we affirm.
We will affirm the sentence imposed by the district court
as long as it is within the statutorily prescribed range and is
reasonable. United States v. Hughes, 401 F.3d 540 (4th Cir. 2005).
An error of law or fact can render the sentence unreasonable.
United States v. Green, 436 F.3d 449, 456 (4th Cir.), cert. denied,
126 S. Ct. 2309 (2006). In considering whether a sentence is
unreasonable, we review the district court’s factual findings for
clear error and its legal conclusions de novo. United States v.
Hampton, 441 F.3d 284, 287 (4th Cir. 2006). A sentencing court
treating the guidelines as advisory continues to make factual
findings concerning sentencing factors by a preponderance of the
evidence. See United States v. Morris, 429 F.3d 65, 72 (4th Cir.
2005), cert. denied, 127 S. Ct. 121 (2006).
An enhancement for an aggravating role in an offense
requires, at a minimum, that “the defendant must have been the
organizer, leader, manager, or supervisor of one or more other
participants.” USSG § 3B1.1, comment. (n.2); see United States v.
Harriott, 976 F.2d 198, 200 (4th Cir. 1992) (two-level enhancement
appropriate where defendant directed activities of one other
person); United States v. Kincaid, 964 F.2d 325, 329 (4th Cir.
1992) (same). Factors distinguishing a leadership or
organizational role from lesser roles include exercise of decision
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making authority, the nature of the participation in the offense,
recruitment of accomplices, the claimed right to a larger share of
the proceeds, 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. USSG § 3B1.1, comment.
(n.4). After carefully reviewing the trial and sentencing
transcripts, we conclude the district court did not clearly err in
the application of the two-level enhancement for Wall’s role in the
offense.
Accordingly, we affirm Wall’s sentence on the second
count. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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