United States v. Redell Ivey ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4614
REDELL IVEY, JR., a/k/a Juvenile
Male,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge.
(CR-98-21-BO)
Submitted: April 30, 1999
Decided: May 24, 1999
Before WILKINS, MOTZ, and KING, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
William Arthur Webb, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Janice McKenzie Cole, United States Attorney, Anne M.
Hayes, Assistant United States attorney, Banumathi Rangarajan,
Assistant United States Attorney, Raleigh, North Carolina, for Appel-
lee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Redell Ivey, Jr., appeals his criminal sentence imposed for kidnap-
ping and aiding and abetting in the same, use and carry of a firearm
during and in relation to a crime of violence and aiding and abetting
in the same, and unauthorized use of an access device and aiding and
abetting in the same, in violation of 18 U.S.C.A.§§ 2, 1201(a)(1),
924(c)(1), 1029(a)(5) (West 1994 & Supp. 1999). Ivey contends that
the district court erred in upwardly departing from the guidelines
range on the basis of physical restraint of the victim. We affirm.
A sentencing court may depart above the guideline range only if
the court finds an aggravating factor of a kind, or to a degree, not ade-
quately taken into consideration by the Sentencing Commission. See
18 U.S.C.A. § 3553(b) (West Supp. 1998). The court's determination
in this regard should focus on whether the factor is taken into account
by the guidelines, policy statements, or commentary. See United
States v. Barber, 119 F.3d 276, 280 (4th Cir.) (en banc), cert. denied,
___ U.S. ___, 66 U.S.L.W. 3355 (U.S. Nov. 17, 1997) (No. 97-6446).
If the court identifies a factor for which departure is encouraged, and
the factor is not taken into account by the applicable guideline, the
court has discretion to depart on that basis. See Koon v. United States,
518 U.S. 81, 96 (1996); United States v. Terry , 142 F.3d 702, 705 (4th
Cir. 1998). But if the encouraged factor is already accounted for
under the applicable guideline, a departure is possible only if the fac-
tor is present to an exceptional degree, or in some other way makes
the case different from the ordinary case where the factor is present.
See Koon, 518 U.S. at 96.
Ivey contends that the physical restraint of the victim in his offense
was already taken into account by the relevant guidelines provisions,
and asserts that he can therefore receive an enhancement for this
behavior only if the level of restraint employed was present to a
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degree sufficient to remove it from the "heartland" of the typical
offense. A district court's decision that an encouraged factor is not
adequately accounted for under the applicable guideline is reviewed
de novo. See Koon, 518 U.S. at 95-96, 100; see also United States v.
Rybicki, 96 F.3d 754, 757-58 (4th Cir. 1996). Review of the record
under this standard reveals no error in Ivey's sentence. Accordingly,
we affirm. 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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