United States v. James , 427 F. App'x 274 ( 2011 )


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  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 10-4766
    UNITED STATES OF AMERICA,
    Plaintiff – Appellee,
    v.
    KEITH ORBIE JAMES,
    Defendant – Appellant.
    Appeal from the United States District Court for the Middle
    District of North Carolina, at Greensboro.   N. Carlton Tilley,
    Jr., Senior District Judge. (1:09-cr-00190-NCT-3)
    Submitted:   April 28, 2011                   Decided:   May 4, 2011
    Before GREGORY, AGEE, and DAVIS, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Benjamin D. Porter, MORROW ALEXANDER PORTER & WHITLEY, PLLC,
    Winston-Salem, North Carolina, for Appellant.        Anand P.
    Ramaswamy, Assistant United States Attorney, Greensboro, North
    Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Keith    James      appeals      the      254-month       sentence            imposed
    following his guilty plea to two counts of interference with
    commerce by robbery, in violation of 
    18 U.S.C. §§ 2
    , 1951 (2006)
    (“Counts One and Three”), and one count of brandishing a firearm
    during     a    crime     of       violence,        in     violation         of        
    18 U.S.C. § 924
    (c)(1)(A)(ii)           (2006)      (“Count         Two”).         On    appeal,          James
    contends       that    the     district        court     erred     in    (1)           applying   a
    Sentencing Guidelines enhancement for James’s leadership role in
    the offense; and (2) denying the Government’s motion for a two-
    level downward departure on Count Two.                            Finding no reversible
    error, we affirm.
    We review a sentence for reasonableness, applying a
    deferential       abuse      of    discretion         standard.          Gall           v.    United
    States, 
    552 U.S. 38
    , 51 (2007).                      In doing so, we review legal
    questions de novo and factual findings for clear error.                                      United
    States     v.    Llamas,          
    599 F.3d 381
    ,    387     (4th           Cir.       2010).
    Specifically, a district court’s decision to apply a sentencing
    adjustment      based     on      the   defendant’s        role     in       the       offense    is
    reviewed for clear error.                     United States v. Sayles, 
    296 F.3d 219
    , 224 (4th Cir. 2002).
    Pursuant to U.S. Sentencing Guidelines Manual (“USSG”)
    § 3B1.1(c)       (2008),       a     defendant         qualifies        for        a    two-level
    enhancement       if    he     was      “an    organizer,         leader,          manager,       or
    2
    supervisor    in     any    criminal    activity.”        USSG      § 3B1.1(c).       In
    determining     a    defendant’s        leadership       role,      a   court     should
    consider seven factors:
    the exercise of decision making authority, the nature
    of participation in the commission of the offense, the
    recruitment of accomplices, the claimed right to a
    larger share of the fruits of the crime, the degree of
    participation in planning or organizing the offense,
    the nature and scope of the illegal activity, and the
    degree of control and authority exercised over others.
    USSG    § 3B1.1,     cmt.    n.4;   see      also    Sayles,     
    296 F.3d at 224
    .
    “Leadership over only one other participant is sufficient as
    long as there is some control exercised.”                           United States v.
    Rashwan, 
    328 F.3d 160
    , 166 (4th Cir. 2003).
    We hold that the district court did not clearly err in
    determining that James should receive an enhancement for being a
    manager.      The evidence presented at sentencing indicated that
    James    organized,        recruited,     and       directed     the    participants,
    supplied the gun for the robberies, and exercised control over
    the proceeds of the robberies.               Thus, we conclude that there was
    sufficient evidence for the district court to find that James
    qualified as a leader and to apply the two-level enhancement.
    We lack the authority to review a district court’s
    denial of a downward departure unless the district court did not
    recognize its authority to do so.                   United States v. Brewer, 
    520 F.3d 367
    , 371 (4th Cir. 2008).                      Here, it is clear that the
    district     court    understood       its       authority     to    depart     downward
    3
    pursuant to USSG § 5K1.1, as it explicitly stated that it was
    departing downward on Counts One and Three but not on Count Two.
    Therefore, we decline to review the district court’s denial of
    the Government’s substantial assistance motion.
    Accordingly, we 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
    4
    

Document Info

Docket Number: 10-4766

Citation Numbers: 427 F. App'x 274

Judges: Gregory, Agee, Davis

Filed Date: 5/4/2011

Precedential Status: Non-Precedential

Modified Date: 11/5/2024