United States v. Newkirk

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4442
MICHAEL NEWKIRK,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Matthew J. Perry, Jr., Senior District Judge.
(CR-95-697)
Submitted: February 27, 1997
Decided: March 13, 1997
Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Herbert W. Louthian, LOUTHIAN & LOUTHIAN, Columbia, South
Carolina, for Appellant. Nancy Elizabeth Caldwell, Assistant United
States Attorney, Columbia, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Michael Newkirk pleaded guilty to armed robbery of a vehicle in
violation of 18 U.S.C. §§ 2, 2119 (1996), and possession of a firearm
during the robbery in violation of 18 U.S.C. § 924(c)(1)-(2) (1996).
The court sentenced Newkirk to forty-six months for the armed rob-
bery count and the mandatory sixty months for the firearm count. The
court also ordered Newkirk to make restitution in the amount of
$562.66. Newkirk appeals his conviction and sentence. Newkirk's
attorney filed a brief in accordance with Anders v. California, 386
U.S. 738 (1967), raising two issues but asserting that, in his view,
there are no meritorious grounds for appeal. Newkirk was informed
of his right to file a pro se supplemental brief, which he failed to file.
Newkirk complains that he received a sentence disproportionate in
severity to that of co-defendants with more culpability and greater
criminal histories. Thus, he claims that the district court erred by not
departing downward from the applicable sentencing range. Sentenc-
ing courts are not required to consider the sentences of co-defendants.
See United States v. Foutz, 865 F.2d 617, 621 (4th Cir. 1989). Fur-
thermore, this court will not review a refusal to depart downward. See
United States v. Bayerle, 898 F.2d 28, 30 (4th Cir. 1990).
Newkirk also asserts that the district court erred by enhancing his
sentence with an upward adjustment for obstruction of justice. A dis-
trict court's findings of fact in the sentencing process must be sus-
tained if they are supported by a preponderance of the evidence, see
United States v. Urrego-Linares, 879 F.2d 1234, 1237 (4th Cir. 1989),
and the court's application of the guidelines when the issue is largely
factual is reviewed under the clearly erroneous standard, see United
States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). We conclude
that the evidence supports the district court's finding that Newkirk
indirectly threatened co-defendant Vanover. The court's findings are
based on crediting Latosha Nichole Vanover's testimony that
Newkirk called her and made a threat against her brother, a co-
defendant, and taking into account the fact that after the threat the
Government requested that the two co-defendants be separated. We
also find that the district court's determination that the guidelines cal-
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led for an upward adjustment when such a threat is made is not
clearly erroneous. An indirect threat against a witness is a sufficient
ground for an obstruction of justice enhancement. See USSG § 3C1.1,
comment. (n.3).
In accordance with the requirements of Anders , we have examined
the entire record and find no meritorious issues for appeal. Accord-
ingly, Newkirk's convictions and sentence are affirmed. This court
requires that counsel inform his client, in writing, of his right to peti-
tion the Supreme Court of the United States for further review. If the
client requests that a petition be filed, but counsel believes that such
a petition would be frivolous, then counsel may move in this court for
leave to withdraw from representation. Counsel's motion must state
that a copy thereof was served on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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