United States v. Danny Grigg, Jr. ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4955
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANNY KERN GRIGG, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:11-cr-00248-RJC-1)
Submitted: May 14, 2013 Decided: May 16, 2013
Before KING, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Henderson Hill, Executive Director, Joshua B. Carpenter, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North
Carolina, for Appellant. Amy Elizabeth Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Danny Kern Grigg, Jr., appeals the twenty-four-month
sentence of imprisonment and $225,000 in restitution ordered
following his guilty plea to four counts of wire fraud and
aiding and abetting, in violation of 18 U.S.C.A. §§ 1343 and 2
(West 2006 & Supp. 2013). On appeal, Grigg’s counsel filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
asserting that there are no meritorious grounds for appeal but
questioning whether the district court’s sentence was reasonable
and whether the restitution ordered was excessive. Grigg was
advised of his right to file a pro se supplemental brief but he
has not filed one. Finding no error, we affirm.
Counsel first questions the procedural reasonableness
of the twenty-four-month within-Guidelines sentence. In
reviewing a sentence, we must first ensure that the district
court did not commit any “significant procedural error,” such as
failing to properly calculate the applicable Guidelines range.
Gall v. United States, 552 U.S. 38, 51 (2007). Here, counsel
specifically challenges whether the district court properly
assessed a two-level enhancement for Grigg’s role in the
offense. In assessing the district court’s application of a
sentence enhancement, we review “the district court’s legal
conclusions de novo and its factual findings for clear error.”
United States v. Horton, 693 F.3d 463, 474 (4th Cir. 2012)
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(internal quotation marks and brackets omitted). A two-level
increase to a defendant’s base offense level is warranted “[i]f
the defendant was an organizer, leader, manager, or supervisor”
in the charged offense and the offense involved less than five
participants. U.S. Sentencing Guidelines Manual (“USSG”)
§ 3B1.1(c) (2010). The Guidelines identify the following
factors courts should use to distinguish between leaders,
organizers, managers, supervisors and other participants:
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, cmt. n.4; see United States v. Chambers, 985 F.2d
1263, 1269 (4th Cir. 1993) (requiring district court to make
specific factual findings in light of above factors). Upon
review, we conclude that the district court did not err in
applying the two-level role enhancement. Thus, the district
court committed no procedural error in imposing Grigg’s
sentence.
Next, counsel questions the substantive reasonableness
of the sentence imposed. In considering substantive
reasonableness, we “take into account the totality of the
circumstances.” Gall, 552 U.S. at 51. When, as in this case,
the sentence imposed is within the applicable Guidelines range,
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it is presumptively reasonable. United States v. Abu Ali, 528
F.3d 210, 261 (4th Cir. 2008). The presumption may be rebutted
by a showing “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). We conclude that Grigg has failed to rebut the
presumption of reasonableness afforded to the within-Guidelines
sentence. Thus, the district court did not abuse its discretion
in sentencing Grigg to twenty-four months’ imprisonment. See
Gall, 552 U.S. at 46 (providing standard of review).
Counsel also questions whether the restitution award
was excessive. Under the Mandatory Victims Restitution Act
(“MVRA”), “the court shall order . . . that the defendant make
restitution to the victim of the offense.” 18 U.S.C. § 3663A
(2006). “Because the MVRA focuses on the offense of conviction
rather than on relevant conduct, the focus of a sentencing court
in applying the MVRA must be on the losses to the victim caused
by the offense.” United States v. Llamas, 599 F.3d 381, 390-91
(4th Cir. 2010) (internal quotation marks, alterations, and
emphasis omitted). Upon review, we conclude that the district
court did not abuse its discretion in ordering Grigg to pay
$225,000 in restitution to the victims of his offenses. See
United States v. Leftwich, 628 F.3d 665, 667 (4th Cir. 2010)
(providing standard of review).
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In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform Grigg, in writing, of his right to
petition the Supreme Court of the United States for further
review. If Grigg requests that a petition be filed, but counsel
believes that such a petition would be frivolous, counsel may
move in this court for leave to withdraw from representation.
Counsel’s motion must state that a copy thereof was served on
Grigg. We dispense with oral argument because the facts and
legal conclusions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
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