United States v. King , 39 F. App'x 39 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4584
KEVIN LARENZO KING,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
James A. Beaty, Jr., District Judge.
(CR-00-329)
Submitted: April 25, 2002
Decided: May 6, 2002
Before WILLIAMS and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
COUNSEL
Thomas H. Johnson, Jr., GRAY, NEWELL, JOHNSON & BLACK-
MON, L.L.P., Greensboro, North Carolina, for Appellant. Anna Mills
Wagoner, United States Attorney, Harry L. Hobgood, Assistant
United States Attorney, Greensboro, North Carolina, for Appellee.
2 UNITED STATES v. KING
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Kevin Larenzo King pled guilty to bank robbery with a dangerous
weapon in violation of 18 U.S.C.A. § 2113(d) (West 2000), and was
sentenced as a career offender to a term of 194 months imprisonment.
U.S. Sentencing Guidelines Manual § 4B1.1 (2000). King appeals his
sentence, alleging that the district court erred in sentencing him as a
career offender, in making a three-level enhancement for brandishing
a dangerous weapon, USSG § 2B3.1(b)(2)(E), and in denying his
request for a departure below the career offender guideline range on
the ground that it overstated the seriousness of his past criminal con-
duct. USSG § 4A1.3, p.s. We affirm in part and dismiss in part.
King claims that the enhancement for brandishing a dangerous
weapon did not apply because he used a toy gun. The weapon he used
in the bank robbery was not recovered. However, the enhancement is
properly applied when the defendant uses an object that appears to be
a dangerous weapon. USSG § 2B3.1, comment. (n.2). Because King
brandished an object that appeared to be a firearm, the enhancement
was properly applied.
King contends that the court erred in sentencing him as a career
offender because the government failed to file an information seeking
an enhanced sentence.* See 18 U.S.C.A. § 3559(c)(4) (West 2000);
21 U.S.C. § 851 (1994). A career offender sentence under § 4B1.1
does not require such notice. United States v. Foster, 68 F.3d 86, 88
(4th Cir. 1995).
*King did not raise this issue below, so our review is for plain error.
United States v. Olano, 507 U.S. 725, 731-32 (1993) (to obtain reversal,
defendant must show error that was plain, affected substantial rights, and
seriously affects the fairness, integrity, or public reputation of judicial
proceedings).
UNITED STATES v. KING 3
Last, the district court’s decision not to depart below the career
offender guideline range is not reviewable on appeal because it is
clear that the district court understood its authority to depart and
determined that a departure was unwarranted. United States v.
Edwards, 188 F.3d 230, 238-39 (4th Cir. 1999).
We therefore affirm the sentence. We dismiss that portion of the
appeal which challenges the district court’s decision not to depart. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED IN PART, DISMISSED IN PART