United States v. Darrell Wright ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4878
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARRELL ANTONIO WRIGHT, a/k/a Bugg, a/k/a Derrick Antonio
Wright,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:12-cr-00040-JFA-4)
Submitted: May 28, 2013 Decided: June 6, 2013
Before WILKINSON, DAVIS, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James P. Craig, CRAIG LAW FIRM, PC, Columbia, South Carolina,
for Appellant. William N. Nettles, United States Attorney,
William K. Witherspoon, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darrell Wright pled guilty to conspiracy to commit
armed robbery, 18 U.S.C. § 1951(a) (2006), and aiding and
abetting the brandishing of a firearm during and in relation to
a crime of violence, 18 U.S.C. §§ 924(c), 2 (2006). He received
a sentence of thirty-seven months’ imprisonment for the
conspiracy conviction and a consecutive eighty-four-month
sentence for the § 924(c) conviction. Wright appeals,
contending that the district court erred in ruling that he
played more than a minor role in the offenses and that an
enhancement for abduction was applicable. U.S. Sentencing
Guidelines Manual §§ 3B1.2(b), 2B3.1(b)(4)(A) (2011). We
affirm.
Wright was employed at a Wild Wing Cafe in Columbia,
South Carolina. He agreed to help Jamario Ford, Alfred
Turnipseed, and Carl Woods rob the restaurant. Wright provided
information about security at the restaurant, who would be
present, the location of the manager’s office, and where they
would find the safe. Wright’s role was to open the back door
when the robbers knocked, but the manager unexpectedly went out
the back door to the dumpster, where the robbers had assembled.
They forced the manager back inside the building at gunpoint and
ordered him to take them to the office and open the safe. On
the way to the office, the robbers encountered Wright and
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another employee, who were told to lie on the floor. Turnipseed
stole a cell phone from the employee. From the safe, the
robbers obtained a total of $9956.
Although the probation officer recommended that Wright
had a minor role in the offenses, the district court determined
that Wright was more than a minor participant, see USSG
§ 3B1.2(b). The court also overruled Wright’s objection to an
enhancement for the abduction of a person to facilitate the
offense, see USSG § 2B3.1(b)(4)(A).
We review sentences for procedural and substantive
reasonableness under an abuse of discretion standard. Gall v.
United States, 552 U.S. 38, 51 (2007). Miscalculation of the
Guidelines range is a significant procedural error. Id.
Although role adjustments are generally reviewed for clear
error, see United States v. Withers, 100 F.3d 1142, 1147 (4th
Cir. 1996), when the facts are not contested, the issue is a
legal one and review is de novo. United States v. Butner, 277
F.3d 481, 488 (4th Cir. 2002).
A defendant is eligible for a mitigating role
adjustment if he is “substantially less culpable than the
average participant.” USSG § 3B1.2 cmt. n.3(A). The minor role
adjustment applies to a defendant “who is less culpable than
most other participants, but whose role could not be described
as minimal.” USSG § 3B1.2(b) cmt. n.5. While the determination
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of whether the defendant played a minor role depends in part on
a comparison of his conduct with that of other participants, the
“critical inquiry is . . . not just whether the defendant has
done fewer bad acts than his co-defendants, but whether the
defendant’s conduct is material or essential to committing the
offense.” United States v. Pratt, 239 F.3d 640, 646 (4th Cir.
2001) (noting that a court must measure defendant’s individual
acts and relative culpability against the elements of the
offense) (citations omitted). The defendant has the burden of
showing by a preponderance of the evidence that he played a
minor role in the offense. United States v. Akinkoye, 185 F.3d
192, 202 (4th Cir. 1999).
Applying these principles, we conclude that the
district court did not err in concluding that the minor role
adjustment was not applicable in Wright’s case. Wright provided
material assistance to the robbers by giving them critical
information about security at the restaurant and its operation,
and assurance that they would have easy access at the back door.
This level of participation and culpability was not minimal.
With respect to the abduction enhancement, a victim is
“abducted” if he is “forced to accompany an offender to a
different location.” USSG § 1B1.1 cmt. n.1(A). “[M]ovement
within the confines of a single building can constitute movement
to a different location . . . .” United States v. Osborne, 514
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F.3d 377, 389-90 (4th Cir. 2008) (internal quotation marks
omitted), and “even a temporary abduction can constitute an
abduction for purposes of the sentencing guidelines.” United
States v. Nale, 101 F.3d 1000, 1003 (4th Cir. 1996). We have
adopted a “flexible, case by case approach to determining when
movement to a different location has occurred.” Osborne, 514
F.3d at 390. (internal quotation marks omitted).
Wright contends that the robbers’ forced movement of
the manager from outside to his office inside the restaurant in
committing the robbery was not clearly an abduction within the
meaning of the Guidelines, as interpreted in Osborne, and that
the district court should have conducted a more nuanced analysis
of the robbers’ actions. Wright also claims that the movement
of the manager was not sufficient to constitute an abduction and
that, in any case, the robbers’ action was not reasonably
foreseeable to him, as required under USSG § 1B1.3(a)(1)(B), for
it to be relevant conduct. However, the district court found
that, even if the robbery had gone according to plan and Wright
had opened the back door to admit his associates, they would
likely have had to order the manager to go from a location
inside the restaurant to the office so he could open the safe.
We are satisfied that the district court’s finding on this point
was not clearly erroneous or unduly speculative. Thus, the
forced movement of the manager by the robbers to execute the
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robbery was foreseeable to Wright. We conclude that the
district court did not err in so concluding, and that the
abduction enhancement applied.
We therefore affirm the district court’s judgment. 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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