United States v. Toler

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4928
GARRY L. TOLER,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
Charles H. Haden II, District Judge.
(CR-03-122)
Submitted: August 27, 2004
Decided: October 4, 2004
Before MOTZ and KING, Circuit Judges,
and HAMILTON, Senior Circuit Judge.
Affirmed in part; dismissed in part by unpublished per curiam opin-
ion.
COUNSEL
Timothy P. Lupardus, Pineville, West Virginia, for Appellant. Kasey
Warner, United States Attorney, Ronald G. Morgan, Assistant United
States Attorney, Charleston, West Virginia, for Appellee.
2 UNITED STATES v. TOLER
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Garry L. Toler pled guilty to bank robbery, 18 U.S.C. § 2113(a)
(2000), and was sentenced as a career offender to a term of 210
months imprisonment. Toler appeals his sentence, contending that the
district court clearly erred in denying him an adjustment for accep-
tance of responsibility, U.S. Sentencing Guidelines Manual § 3E1.1
(2003), and failed to recognize its authority to depart below the career
offender guideline range pursuant to USSG § 4A1.3, p.s. We affirm
in part and dismiss in part.
Although the government did not oppose an adjustment for accep-
tance of responsibility, the district court agreed with the probation
officer’s estimation that Toler had not been fully truthful in his pre-
sentence interview. In particular, the court found that Toler had tried
to minimize his culpability by portraying the bank robbery as an
impulsive, unplanned act driven by his drug addiction and immediate
need for money to buy drugs. The probation officer noted that Toler
admitted that he watched the bank for fifteen to twenty minutes
before he entered it, talked to the head teller about opening an account
for the same length of time, left the bank and returned a short time
later to talk to her again. The head teller reported that, during the sec-
ond conversation, Toler seemed to be watching the customers and
waiting for them to leave. In addition, in a prior interview with agents
from the Federal Bureau of Investigation, Toler had described in
detail, under a grant of immunity, a number of robberies and fraudu-
lent acts he had committed during the several years preceding the
instant bank robbery. Yet he was reluctant to discuss these offenses
with the probation officer and claimed that he could not remember the
details. Toler’s statement to the probation officer also conflicted with
information from his wife, who reported that, when the police
appeared at the motel where they were staying after the bank robbery
and Toler disappeared, she called Toler at his parents’ house and he
UNITED STATES v. TOLER 3
instructed her to go to another motel. Toler’s daughter drove Mrs.
Toler to the second motel, in Justice, West Virginia. She took the rob-
bery proceeds with her, and registered at the motel under an assumed
name. Toler said he had left the first motel to clear his head and later
had searched frantically for his wife. He did not explain how he found
her, but he was arrested at the same motel in Justice, where he had
also registered under a false name.
The district court’s factual determination that a defendant has not
accepted responsibility is reviewed for clear error. United States v.
Pauley, 289 F.3d 254, 261 (4th Cir. 2002), cert. denied, 537 U.S.
1178 (2003). To qualify for the adjustment under the 2002 Guidelines
Manual, a defendant must truthfully admit the conduct comprising the
offense of conviction and admit, or not falsely deny, any relevant con-
duct for which he is accountable under USSG § 1B1.3. See USSG
§ 3E1.1, comment. (n.1(a)). The defendant need not admit relevant
conduct or other criminal conduct beyond the offense of conviction.
Id. However, a guilty plea alone does not entitle a defendant to the
adjustment, and the adjustment may be denied if the defendant exhib-
its conduct that is inconsistent with acceptance of responsibility.
USSG § 3E1.1, comment. (n.3); United States v. Harris, 882 F.2d
902, 906 (4th Cir. 1989).
Toler was not required to admit any criminal conduct beyond the
offense of conviction to earn an adjustment for acceptance of respon-
sibility. USSG § 3E1.1, comment. (n.1(a)). However, to the extent
that Toler’s statement to the probation officer conflicted with his prior
admission to the FBI about other robberies and fraud offenses he had
committed and with Mrs. Toler’s statement, in an effort to portray the
instant offense as an isolated, impulsive act, his lack of candor about
these prior crimes was significant. Therefore, the district court did not
clearly err in finding that Toler’s conduct in the presentence interview
was inconsistent with acceptance of responsibility.
A defendant qualifies for sentencing as a career offender if he is
at least eighteen years old at the time of the instant offense, and has
two prior felony convictions for either a crime of violence or a con-
trolled substance offense. Toler was in his 40’s when he committed
the instant bank robbery and had prior felony convictions for armed
robbery and cocaine distribution.
4 UNITED STATES v. TOLER
Toler does not offer any argument concerning the propriety of the
district court’s decision to sentence him as a career offender. He has
thus abandoned on appeal the issue of his career offender status.
Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999)
(noting that issues not briefed or argued on appeal are deemed aban-
doned). Instead, Toler maintains that he was entitled to a departure
below the career offender guideline range because both predicate
offenses were committed more than fifteen years before he committed
the instant offense,* the sentences were partially concurrent, and he
did not have another felony conviction for a crime of violence or drug
offense until his conviction for the instant offense. Toler suggests that
the district court may not have understood its legal authority to depart
downward because the court did not specifically address his request
for a downward departure.
The sentencing court’s decision not to depart downward is not
reviewable on appeal unless its decision results from a mistaken belief
that it lacks the authority to depart. United States v. Carr, 271 F.3d
172, 176 (4th Cir. 2001). To determine whether the district court erro-
neously failed to recognize its authority to depart, the appeals court
should consider relevant statements made by the district court. United
States v. Aramony, 166 F.3d 655, 665 (4th Cir. 1999). Here, the dis-
trict court gave no indication that it was unaware of its authority to
depart. Because § 4A1.3 explicitly gives the sentencing court the
authority to depart downward and this Court has held that the court
may depart downward from a career offender sentence, see United
States v. Brown, 23 F.3d 839, 841 (4th Cir. 1994), the record provides
no basis from which to conclude that the court did not recognize its
authority to depart. Therefore, its decision is not reviewable.
We therefore affirm the sentence imposed by the district court, but
dismiss that portion of the appeal that challenges the district court’s
decision not to depart. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
*The sentence for each predicate offense extended into the fifteen-year
period preceding the instant offense, and was thus countable in Toler’s
criminal history. USSG § 4A1.2(e)(1).
UNITED STATES v. TOLER 5
before the court and argument would not aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART