United States v. Grier

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4086
TROY M. GRIER,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, District Judge.
(CR-95-207-MU)
Submitted: August 4, 1998
Decided: August 20, 1998
Before WIDENER, ERVIN, and MOTZ, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Aaron E. Michel, Charlotte, North Carolina, for Appellant. Mark T.
Calloway, United States Attorney, Brian L. Whisler, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Troy Grier appeals from the sentence imposed by the district court
after pleading guilty to conspiracy to commit offenses against the
United States (counterfeiting, bank fraud, and postal theft) in viola-
tion of 18 U.S.C. § 371 (1994). Grier appeals his sentence. We affirm.
In March 1995, Grier met Celeste Roseboro and Yuri Southerland,
who invited Grier to participate in their scheme to defraud merchants
and banks by passing fake checks for cash and merchandise. Grier
drove Roseboro and Southerland to various banks and merchants and
Southerland paid Grier $150 per day. Grier was involved in the
scheme from May 1995 to August 1995 and had also attempted to
pass stolen checks with forged signatures.
Grier first asserts that the district court erred in applying U. S. Sen-
tencing Guidelines Manual § 3C1.1 (1997), which provides for a two-
level enhancement if "the defendant willfully obstructed or impeded,
or attempted to obstruct or impede the administration of justice during
the investigation, prosecution, or sentencing of the instant offense."
During sentencing, the prosecutor presented evidence that Grier failed
to appear at his sentencing hearing in August 1997 and that the United
States Marshals attempted to locate Grier and serve an arrest warrant.
When the marshals located Grier, they approached him and told him
to put his hands where they could see them. Grier, who was in his
vehicle at the time, sped off at a high rate of speed. The marshals pur-
sued but failed to catch him. Grier eventually surrendered.
Grier asserts that mere flight from arrest does not warrant an
enhancement for obstruction of justice under the Guidelines. The
question of whether flight from arrest qualifies as obstruction of jus-
tice involves a legal interpretation of the guidelines, and as such, the
determination made by the district court is reviewed de novo. See
United States v. Daughtrey, 874 F.2d 213, 217-18 (4th Cir. 1989).
This court has stated that "endangering others during flight or in the
course of resisting arrest involves active, willful behavior; in contrast,
mere flight or disagreeableness during an encounter involves more
passive or instinctive conduct." United States v. John, 935 F.2d 644,
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648 (4th Cir. 1991). Grier's leading the marshals on a high speed
chase constituted active and willful behavior in contrast to passive
conduct and could have resulted in harm to the marshals or innocent
bystanders. See United States v. Hicks, 948 F.2d 877, 884 (4th Cir.
1991). We find, therefore, that the district court correctly enhanced
Grier's sentence for obstruction of justice.
Grier next asserts that the district court erred in its determination
of the amount of loss attributable to him. Specifically, Grier contests
the length of his involvement in the conspiracy. A district court's
finding of amount of loss is generally a factual question reviewed for
clear error. See United States v. Chatterji, 46 F.3d 1336, 1340 (4th
Cir. 1995).
The presentence report establishes that Grier was involved in the
conspiracy for approximately three months. Grier admitted in an
interview with the probation officer that he worked for Roseboro and
Southerland from May through August 1995. At sentencing, the dis-
trict court adopted the presentence report's factual findings and deter-
mined that Grier was accountable for three months of the loss
attributable to the overall conspiracy. Grier did not present any evi-
dence at the sentencing hearing establishing that he was not involved
in the conspiracy for that amount of time. Thus, we find that the dis-
trict court's loss amount calculation was not clearly erroneous.
Finally, Grier asserts that he should have received a reduction for
his "minor" role in the offense. The district court's determination of
a defendant's role in the offense is reviewable under the clearly erro-
neous standard. See Daughtrey, 874 F.2d at 218.
A defendant's role in the offense is determined by the entirety of
his relevant conduct, not simply by actions encompassed by the count
of conviction. See United States v. Fells, 920 F.2d 1179, 1184 (4th
Cir. 1990). Grier fails to establish that his actions within the conspir-
acy made him less culpable than his other co-conspirators. The record
shows that Grier passed stolen checks and was more than just a minor
participant. Thus, the district court did not err in declining to adjust
Grier's sentence to reflect a minor role in the conspiracy.
Accordingly, we affirm Grier's sentence. We dispense with oral
argument because the facts and legal contentions are adequately pre-
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sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED
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