United States v. James

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4766
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KEITH ORBIE JAMES,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:09-cr-00190-NCT-3)
Submitted: April 28, 2011 Decided: May 4, 2011
Before GREGORY, AGEE, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Benjamin D. Porter, MORROW ALEXANDER PORTER & WHITLEY, PLLC,
Winston-Salem, North Carolina, for Appellant. Anand P.
Ramaswamy, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Keith James appeals the 254-month sentence imposed
following his guilty plea to two counts of interference with
commerce by robbery, in violation of 18 U.S.C. §§ 2, 1951 (2006)
(“Counts One and Three”), and one count of brandishing a firearm
during a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii) (2006) (“Count Two”). On appeal, James
contends that the district court erred in (1) applying a
Sentencing Guidelines enhancement for James’s leadership role in
the offense; and (2) denying the Government’s motion for a two-
level downward departure on Count Two. Finding no reversible
error, we affirm.
We review a sentence for reasonableness, applying a
deferential abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007). In doing so, we review legal
questions de novo and factual findings for clear error. United
States v. Llamas, 599 F.3d 381, 387 (4th Cir. 2010).
Specifically, a district court’s decision to apply a sentencing
adjustment based on the defendant’s role in the offense is
reviewed for clear error. United States v. Sayles, 296 F.3d
219, 224 (4th Cir. 2002).
Pursuant to U.S. Sentencing Guidelines Manual (“USSG”)
§ 3B1.1(c) (2008), a defendant qualifies for a two-level
enhancement if he was “an organizer, leader, manager, or
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supervisor in any criminal activity.” USSG § 3B1.1(c). In
determining a defendant’s leadership role, a court should
consider seven factors:
the exercise of decision making authority, the nature
of participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a
larger share of the fruits of the crime, the degree of
participation in planning or organizing the offense,
the nature and scope of the illegal activity, and the
degree of control and authority exercised over others.
USSG § 3B1.1, cmt. n.4; see also Sayles, 296 F.3d at 224.
“Leadership over only one other participant is sufficient as
long as there is some control exercised.” United States v.
Rashwan, 328 F.3d 160, 166 (4th Cir. 2003).
We hold that the district court did not clearly err in
determining that James should receive an enhancement for being a
manager. The evidence presented at sentencing indicated that
James organized, recruited, and directed the participants,
supplied the gun for the robberies, and exercised control over
the proceeds of the robberies. Thus, we conclude that there was
sufficient evidence for the district court to find that James
qualified as a leader and to apply the two-level enhancement.
We lack the authority to review a district court’s
denial of a downward departure unless the district court did not
recognize its authority to do so. United States v. Brewer, 520
F.3d 367, 371 (4th Cir. 2008). Here, it is clear that the
district court understood its authority to depart downward
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pursuant to USSG § 5K1.1, as it explicitly stated that it was
departing downward on Counts One and Three but not on Count Two.
Therefore, we decline to review the district court’s denial of
the Government’s substantial assistance motion.
Accordingly, we affirm the district court’s judgment.
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.
AFFIRMED
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