United States v. Terry Bethea , 547 F. App'x 316 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4517
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TERRY LEE BETHEA,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:12-cr-00443-CCE-1)
Submitted: November 20, 2013 Decided: December 4, 2013
Before DAVIS, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen III, Federal Public Defender, William S.
Trivette, Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Andrew C. Cochran, Special Assistant United States Attorney,
Winston-Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terry Lee Bethea pled guilty, pursuant to a plea
agreement, to Hobbs Act robbery, in violation of 18 U.S.C.
§ 1951(a) (2012), and brandishing a firearm during a crime of
violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (2012).
The district court sentenced Bethea to forty-six months’
imprisonment on the robbery count and a consecutive eighty-four
months, the statutory mandatory minimum, on the § 924(c)
brandishing count. Bethea timely appeals, arguing that the
district court erred in applying a four-level enhancement for
abduction, see U.S. Sentencing Guidelines Manual, § 2B3.1
(b)(4)(A) (2012), and that his sentence is unreasonable because
it is greater than necessary to comply with the purposes of 18
U.S.C. § 3553(a) (2012). We affirm.
First, Bethea’s offense level, derived from the
robbery Guideline, was increased by four levels based on the
abduction of two victims during the robbery. Bethea does not
contest the district court’s factual findings but argues that
the facts do not support an application of the enhancement.
However, as counsel concedes, our decision in United States v.
Osborne, 514 F.3d 377 (4th Cir. 2008), forecloses any argument
that moving employees from one part of a store to another does
not constitute abduction. Because "[a] panel of this court
cannot overrule . . . the precedent set by a prior panel of this
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court,” this argument fails. Watkins v. SunTrust Mortg., Inc.,
663 F.3d 232, 241 (4th Cir. 2011) (internal quotation marks
omitted).
Bethea next argues that his sentence is unreasonable.
We review a sentence for reasonableness, applying “a deferential
abuse-of-discretion standard.” Gall v. United States, 552 U.S.
38, 41 (2007). We must first “ensur[e] that the district court
committed no significant procedural error,” such as improperly
calculating the Guidelines range, insufficiently considering the
§ 3553(a) sentencing factors and the parties’ arguments, or
inadequately explaining the sentence imposed. United States v.
Lynn, 592 F.3d 572, 575 (4th Cir. 2010) (internal quotation
marks omitted).
If the sentence is free of significant procedural
error, we review it for substantive reasonableness. Gall, 552
U.S. at 51. The sentence imposed must be “sufficient, but not
greater than necessary, to comply with the purposes [of
sentencing].” 18 U.S.C. § 3553(a). In reviewing a sentence for
substantive reasonableness, this court “examines the totality of
the circumstances.” United States v. Mendoza-Mendoza, 597 F.3d
212, 216 (4th Cir. 2010). If the sentence is within the
properly calculated Guidelines range, we apply a presumption on
appeal that the sentence is substantively reasonable. United
States v. Susi, 674 F.3d 278, 289 (4th Cir. 2012). Such a
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presumption is rebutted only by showing “that the sentence is
unreasonable when measured against the § 3553(a) factors.”
United States v. Montes-Pineda, 445 F.3d 375, 379 (2006)
(internal quotation marks omitted). An appellate court will
only reverse a sentence if it is unreasonable, even if the
appellate court would have imposed a different sentence. United
States v. Evans, 526 F.3d 155, 160 (4th Cir. 2008).
Bethea argues that he should have received a downward
variance because the mandatory minimum sentence for brandishing
punishes both the brandishing and the abduction. Further,
Bethea contends that his sentence is greater than necessary to
comply with the § 3553(a) factors because the abduction only
constituted moving employees a short distance.
We conclude that Bethea’s sentence is not unreasonable
when measured against the § 3553(a) factors. The district court
rejected Bethea’s argument for a below-Guidelines sentence based
on the four-level enhancement overstating the seriousness of the
offense, noting that Bethea victimized two individuals during
the robbery. See 18 U.S.C. § 3553(a)(2)(A), (C). Further, we
simply disagree with Bethea’s argument that the abduction
enhancement and the brandishing conviction subjected him to
double punishment for the same conduct. In light of the
deference accorded the district court’s exercise of its
sentencing discretion, we conclude that Bethea has failed to
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rebut the presumption of reasonableness accorded his
within-Guidelines sentence. Montes-Pineda, 445 F.3d at 379.
Accordingly, we affirm Bethea’s sentence. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
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