United States v. Riley , 282 F. App'x 283 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4927
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARLTON ARNEZ RILEY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior District
Judge. (7:06-cr-00098-jct)
Submitted: May 30, 2008 Decided: June 27, 2008
Before WILKINSON and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Neil A. Horn, Roanoke, Virginia, for Appellant. John L. Brownlee,
United States Attorney, R. Andrew Bassford, Assistant United States
Attorney, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carlton Arnez Riley pled guilty to one count of attempted
possession of cocaine with intent to distribute, 21 U.S.C. § 846(2000), and was sentenced to a term of fifty-seven months
imprisonment. Riley appeals his sentence, contending that the
district court clearly erred in finding that he abused a position
of trust in a manner that significantly facilitated the commission
or concealment of the offense, U.S. Sentencing Guidelines Manual
§ 3B1.3 (2006). For the reasons explained below, we vacate the
sentence and remand for resentencing.
When he committed the offense, Riley was a state
probation officer in Henry County, Virginia. He was arrested after
he made a controlled purchase from a cooperating defendant, Calvin
Rayfield Moore.* This court reviews de novo the district court’s
determination that the defendant held a position of trust under
§ 3B1.3, and reviews the factual findings that support the
adjustment for clear error. United States v. Ebersole, 411 F.3d
517, 535-36 (4th Cir. 2005); United States v. Caplinger, 339 F.3d
226, 235-36 (4th Cir. 2003).
Riley concedes that he held a position of trust, but
contends that the government produced no evidence that his position
enabled him to commit or conceal the offense. Application Note 1
to § 3B1.3 states: “For this adjustment to apply, the position of
*
Moore died before Riley was sentenced.
- 2 -
public or private trust must have contributed in some significant
way to facilitating the commission or concealment of the offense
(e.g., by making the detection of the offense or the defendant’s
responsibility for the offense more difficult).” The district
court accepted the probation officer’s speculation that Riley’s
position must have facilitated his commission and concealment of
the offense by giving him knowledge of the activities of law
enforcement officers in the county and allowing him to associate
with convicted criminals without arousing suspicion. However, no
specific evidence was produced to show that Riley’s position
actually aided him in this way. The government’s argument at
sentencing was focused entirely on the damage Riley’s actions
caused to the reputation of the criminal justice system in the
county, which is not a basis for giving the adjustment. See United
States v. Wadena, 152 F.3d 831, 856-57 (8th Cir. 1998).
A sentence is reviewed for reasonableness, applying an abuse
of discretion standard. Gall v. United States, 128 S. Ct. 586, 597
(2007); see also United States v. Pauley, 511 F.3d 468, 473 (4th
Cir. 2007). The appellate court must first ensure that the
district court committed no procedural error, such as “failing to
calculate (or improperly calculating) the Guideline range, treating
the Guidelines as mandatory, failing to consider the § 3553(a)
factors, selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence--including an
- 3 -
explanation for any deviation from the Guideline range.” Gall, 128
S. Ct. at 597. Here, in the absence of evidence that Riley’s
position “contributed in some significant way to facilitating the
commission or concealment of the offense,” USSG § 3B1.3, comment.
(n.1), we cannot affirm the district court’s application of the
adjustment.
We therefore vacate the sentence imposed by the district
court and remand for resentencing. On remand, the district court
should not impose the § 3B1.3 adjustment unless it finds that the
necessary evidentiary support exists. 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.
VACATED AND REMANDED
- 4 -