US v. James Morrow, No. 08-4429 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4429 UNITED STATES OF AMERICA, Plaintiff Appellee, v. JAMES WEBSTER MORROW, Defendant Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (5:07-cr-00336 FL-1) Submitted: March 18, 2009 Decided: April 27, 2009 Before MICHAEL, MOTZ, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Banumathi Rangarajan, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: James Webster Morrow pled guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924 (2006). In sentencing Morrow, the district court overruled his objection to a two-level enhancement for obstruction of justice without change. months the imprisonment, district which of the presentence report the fell within Morrow s advisory Morrow timely noted his appeal and argues court obstruction of justice. arguments adopted The district court sentenced Morrow to seventy guidelines range. that and erred in enhancing his sentence for After considering the record and the parties, we reject Morrow s arguments and affirm the judgment of the district court. The sentencing guidelines provide for a two-level enhancement if a defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and . . . the obstructive conduct related conviction[.] to U.S. . . . the Sentencing defendant s Guidelines offense Manual of § 3C1.1 (2007). Obstructive conduct that occurs prior to the start of the investigation of the offense may be covered if the conduct was purposefully calculated, and 2 likely, to thwart the investigation or prosecution of USSG § 3C1.1, comment (n.1). meaning of § 3C1.1 the offense of conviction. Obstructive conduct within the includes, but is not limited to, threatening, intimidating, or otherwise unlawfully influencing a co-defendant, witness, or juror and threatening the victim of the offense in an attempt to prevent the victim from reporting the conduct constituting the offense of conviction. USSG § 3C1.1, comment (n.4(a), (k)). Morrow argues that Application Note 1 to § 3C1.1 required the district court to find that his conduct both was purposefully calculated and likely to thwart the investigation or prosecution of his offense of conviction in order to enhance his sentence for obstruction of justice, and that the explicitly district state court these misapplied findings. § 3C1.1 Morrow by failing argues that to this failure by the district court was an error of law requiring de novo review by this court as opposed to review for clear error. See United States v. Kiulin, 360 F.3d 456, 460 (4th Cir. 2004); United States v. Williams, 152 F.3d 294, 302 (4th Cir. 1998). Morrow never challenged the findings in the presentence report that he threatened to kill a witness and the witness girlfriend if they reported to the police that Morrow had a firearm. intentionally Rather, Morrow simply claimed that he did not threaten the witness 3 and that the witness misunderstood his behavior. In the presentence report, the probation officer, in response to Morrow s objection, referenced the examples of obstructive conduct in Application Notes 4(a) and 4(k) to § 3C1.1 and reiterated the offense that fell within these examples. objection to the presentence report facts from Morrow s By overruling Morrow s based on the probation officer s recommendation, the district court implicitly adopted the findings the presentence report responsive Williams, 152 F.3d at 301. objection. reference in the text of an Application to the The court need not Note in making those findings, and Morrow s first claim, therefore, is without merit. Morrow insufficient next evidence argues to that prove by the a record preponderance contains of the evidence that he purposefully calculated any threat in order to thwart the essentially investigation claims that of the because all obstructive, none of his conduct was. instant of his offense. conduct Morrow was not Our review of the record leads us to conclude that this claim is without merit. Accordingly, we affirm the judgment of the district court. We dispense with oral argument as the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 4
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