US v. Larry Whitfield, No. 12-4956 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4956 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LARRY WHITFIELD, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., District Judge. (3:09-cr-00009-RJC-DCK-1) Submitted: November 27, 2013 Decided: December 10, 2013 Before WILKINSON, NIEMEYER, and KING, Circuit Judges. Affirmed by unpublished per curiam opinion. Henderson Hill, Executive Director, Joshua B. Carpenter, Appellate Counsel, Asheville, North Carolina; Erin K. Taylor, Kevin A. Tate, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, William M. Miller, Assistant United States Attorney, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Larry Whitfield judgment imposed district court appeals following for our from the remand resentencing for amended of his his forced conviction under 18 U.S.C. § 2113(e) (2012). v. Whitfield, 695 F.3d 288, 311 (4th criminal case to the accompaniment See United States Cir. 2012). At the resentencing hearing, Whitfield challenged the district court s application § 2A1.1 of U.S. (2009). Sentencing The district Guidelines court Manual rejected ( USSG ) Whitfield s argument, concluding that his conduct caused the death of the victim, Mary Parnell. The court imposed a 264-month sentence for Whitfield s § 2113(e) conviction. On appeal, Whitfield first contends that the district court erred by miscalculating his Guidelines range. Whitfield s standard. review sentence under a deferential We review abuse-of-discretion Gall v. United States, 552 U.S. 38, 41 (2007). requires consideration of both the This procedural and substantive reasonableness of the sentence. Id. at 51; United States Cir. v. Lynn, 592 F.3d 572, 575 (4th 2010). In determining procedural reasonableness, we consider whether the district Guidelines factors, court properly range, and calculated considered sufficiently the 18 explained Gall, 552 U.S. at 51. 2 the defendant s U.S.C. the advisory § 3553(a) selected (2012) sentence. In assessing whether a district court properly calculated the Guidelines range, including application of any sentencing enhancements, we review the district court s legal conclusions de novo and its factual findings for clear error. United States v. Layton, 564 F.3d 330, 334 (4th Cir. 2009). [S]entencing judges may find facts relevant to determining a Guidelines range by a preponderance of the evidence, so long as that Guidelines sentence is treated as advisory and falls within the statutory maximum authorized [by the jury's verdict]. United States v. Alvarado Perez, 609 F.3d 609, 614 (4th Cir. 2010) (internal quotation marks omitted). The district court in this case determined Whitfield s Guidelines range by first applying USSG § 2B3.1, which provides the offense level for robbery. Section 2B3.1(c) directs a court to apply a cross-reference to USSG § 2A1.1 [i]f a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111. killings The definition of first-degree murder includes committed in the perpetration of, perpetrate, any . . . burglary, or robbery. or attempt to 18 U.S.C. § 1111 (2012); see also United States v. Williams, 342 F.3d 350, 356 (4th Cir. 2003). In support of his contention that the district court miscalculated the applicable Guidelines range, Whitfield argues that the court should not have applied USSG § 2B3.1 s cross- 3 reference to the felony murder provision in USSG § 2A1.1. He asserts that the district court applied an improper causation standard in determining that he caused Parnell s death. At resentencing, the district court found by a preponderance of the evidence presented at trial, including the testimony of the Government s expert witnesses, that Parnell s death was caused by Whitfield s conduct. careful review of the record, that We cannot say, after this finding is clearly erroneous or that the district court committed legal error in assessing the evidence. Therefore, Whitfield s causation argument entitles him to no relief. Whitfield court erred opposed to Guidelines, in his alternatively concluding mere however, that presence, do asserts the forced caused not that district accompaniment, Parnell s require the that death. the as The forced accompaniment directly cause the death; instead, USSG § 2A1.1 is applicable because Parnell s death occurred during the course of Whitfield s attempted robbery. See USSG § 2A1.1 cmt. n.1 (noting provision s applicability when death results from the commission of certain felonies ). 4 We therefore conclude that the district court did not err in applying the cross-reference to USSG § 2A1.1 for Whitfield s forced accompaniment conviction. Whitfield next contends that the district court violated his Fifth and Sixth Amendment rights by resentencing him on acquitted conduct. As Whitfield acknowledges, however, this argument is foreclosed by our decision in United States v. Young, 609 F.3d 348, 356 (4th Cir. 2010). Finally, Whitfield argues that his 264-month sentence exceeds the statutory maximum. F.3d 111, permit a 121 (4th maximum accompaniment In United States v. Turner, 389 Cir. 2004), sentence of convictions. we life We interpreted § 2113(e) imprisonment therefore conclude for to forced that this argument lacks merit. Accordingly, we affirm the district court s judgment. We dispense contentions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid the decisional process. AFFIRMED Because we conclude that the district court did not err in resentencing Whitfield, we reject his arguments that he should be resentenced on his other convictions and that he should be resentenced by a different district court judge. 5

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