United States v. Carter , 267 F. App'x 402 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 29, 2008
No. 07-20088
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ANDRE MARSELLES CARTER
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-46-2
BeforeWIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Andre Marselles Carter appeals his sentence for
aiding and abetting a bank robbery and attempted bank robbery, in violation of
18 U.S.C. §§ 2113(a), (d) and 2, and aiding and abetting the brandishing of a
firearm, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2. Carter contends that
the district court erred in increasing his base offense level five levels, pursuant
to U.S.S.G. § 2B3.1(b)(2)(C), for Rodney Lee Thompson’s brandishing of a firearm
during a July 11, 2003, bank robbery, insisting that there was inadequate proof
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 07-20088
that Thompson brandished an actual firearm. As Carter did not preserve this
issue at the district court level, plain error review applies. United States v.
Villegas, 404 F.3d 355, 358 (5th Cir. 2005). We determined previously that the
evidence was sufficient to prove that Thompson brandished a firearm. United
States v. Thompson, 454 F.3d 459, 465 (5th Cir.), cert. denied, 127 S. Ct. 602(2006). That determination is the law of the case, so it precludes reconsideration
of the issue. See United States v. Matthews, 312 F.3d 652, 653 (5th Cir. 2002).
Carter also contends that the district court erred in increasing his base
offense level five levels, pursuant to U.S.S.G. § 2B3.1(b)(2)(C), for Thompson’s
brandishing of a firearm during the July 11, 2003, bank robbery, insisting that
it was not foreseeable to Carter that Thompson would brandish a firearm. The
application of the five-level enhancement is a factual finding reviewed for clear
error. United States v. Villanueva, 408 F.3d 193, 203 & n.9 (5th Cir. 2005).
Carter has failed to demonstrate that the district court clearly erred in its
finding that Thompson’s brandishment of the firearm during the July 11, 2003
robbery was reasonably foreseeable to Carter.
Finally, Carter asserts that the two-level restraint adjustment on Count
Three was inappropriate, but does not provide any support for this contention.
As Carter has failed to brief the issue adequately, we shall not consider it. See
United States v. Charles, 469 F.3d 402, 408 (5th Cir.), cert. denied, 127 S. Ct.
1505 (2007)(stating that inadequately briefed issues on appeal are abandoned).
AFFIRMED.
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