United States v. Brasington ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4115
BENJAMIN CLIFTON BRASINGTON, III,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-01-322)
Submitted: June 20, 2002
Decided: July 15, 2002
Before NIEMEYER, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Louis C. Allen, III, Federal Public Defender, William C. Ingram,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, L. Patrick
Auld, Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.
2 UNITED STATES v. BRASINGTON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Benjamin Clifton Brasington, III, appeals the twenty-seven-month
sentence imposed upon his conviction for conspiring to manufacture
and distribute unauthorized electronic devices and equipment, in vio-
lation of 18 U.S.C. § 371 (1994), 47 U.S.C.A. § 605(e)(4) (West
2001), and counterfeiting, in violation of 18 U.S.C.A. § 474 (West
2000). On appeal, Brasington challenges the two-level increase in his
offense level for use of a special skill to facilitate the former offense.
See U.S. Sentencing Guidelines Manual § 3B1.3 (1998). We affirm.
Brasington, a DirecTV dealer and installer, modified the internal
computer microchips of satellite access cards. He then sold many of
the modified cards, enabling the purchasers to obtain DirecTV pro-
gramming for which they had not paid. We conclude that his ability
to modify the microchips constituted a "special skill" under USSG
§ 3B1.3 and that the district court did not clearly err in enhancing
Brasington’s offense level by two levels. We note in particular that
Brasington’s actions required a level of sophistication far beyond that
of the ordinary computer user, and we find that the facts of this case
are more akin to those in United States v. Petersen, 98 F.3d 502 (9th
Cir. 1996) (holding that self-taught ability to hack into computer sys-
tems warrants special skill assessment), than those in United States v.
Godman, 223 F.3d 320 (6th Cir. 2000) (remanding for resentencing
upon finding that using commonly available desktop publishing soft-
ware to produce counterfeit Federal Reserve Notes does not require
sophisticated skill level warranting enhancement under USSG
§ 3B1.3).
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED