United States v. Reid ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4232
DEREK LAVINCENT REID,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-01-202)
Submitted: October 31, 2002
Decided: November 26, 2002
Before WILKINS and LUTTIG, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Robert L. McClellan, IVEY, MCCLELLAN, GATTON & TAL-
COTT, L.L.P., Greensboro, North Carolina, for Appellant. Anna
Mills Wagoner, United States Attorney, Robert A. J. Lang, Assistant
United States Attorney, Winston-Salem, North Carolina, for Appel-
lee.
2 UNITED STATES v. REID
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Derek Lavincent Reid appeals his conviction following a jury trial
of one count of obstruction of commerce with threat or violence dur-
ing a robbery in violation of 18 U.S.C. § 1951 (2000) and one count
of carrying and using a firearm during and in relation to a crime of
violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (2000), and sen-
tence to 120 months in prison for Count 1 and eighty-four months in
prison for Count 3, to run consecutively, and three years of supervised
release. We affirm.
First, Reid argues the district court’s questions to Reid during his
testimony called into question his credibility and indicated a disbelief
in the veracity of his testimony. Generally, a trial judge’s interroga-
tion of witnesses is reviewed for abuse of discretion. United States v.
Wilson, 135 F.3d 291, 307 (4th Cir. 1998). Reid, however, made no
objections to the judge’s questioning. Rule 614(c) of the Federal
Rules of Criminal Procedure allows objections to interrogation by the
court to be made "at the time [of the questions] or at the next avail-
able opportunity when the jury is not present." Therefore, we limit our
review to plain error. United States v. Olano, 507 U.S. 725, 732-34
(1993). Reid is not entitled to relief on this claim unless he shows: (1)
error; (2) that the error is plain; and (3) that the error affects substan-
tial rights. Id. at 732. Even then, this Court "refrain[s] from interven-
ing unless the error ‘seriously affects the fairness, integrity or public
reputation of judicial proceedings.’" Godwin, 272 F.2d at 679 (quot-
ing Olano, 507 U.S. at 736). We have reviewed the record and find
no plain error.
Second, Reid argues the district court erred when it applied a two-
level enhancement for obstruction of justice under USSG § 3C1.1.
Section 3C1.1 allows a two-level increase when a defendant willfully
obstructs or impedes the administration of justice during the investi-
UNITED STATES v. REID 3
gation, prosecution or sentencing of an offense. The district court’s
factual findings concerning sentencing factors are reviewed for clear
error, and legal determinations are reviewed de novo. United States
v. France, 164 F.3d 203, 209 (4th Cir. 1998). We have reviewed the
record and conclude the district court did not err when it applied the
enhancement based on a finding of perjury during Reid’s testimony.
Finally, Reid argues the district court erred when it departed
upward. Reid argues the district court applied an upward departure
based on his reputation and that this consideration is impermissible.
The district court, however, departed upward based on the inadequacy
of Reid’s criminal history category and the likelihood that he would
commit other crimes under U.S. Sentencing Guidelines Manual
§ 4A1.3 (2001). Assuming, without deciding, that the court’s consid-
eration of reputation was improperly included in its calculus, the
record nonetheless amply supports the court’s finding even if that fac-
tor is excluded.
The court’s ultimate decision to depart is reviewed for abuse of dis-
cretion, but its underlying factual findings are reviewed for clear error
and, if the departure is based on a misinterpretation of the guideline,
that underlying ruling is reviewed de novo. United States v. Rybicki,
96 F.3d 754, 758 (4th Cir. 1996). We have reviewed the record and
conclude the district court did not abuse its discretion when it
departed upward based on the inadequacy of Reid’s criminal history
category and the likelihood that he would commit other crimes.
We therefore affirm Reid’s conviction and sentence. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED