US v. Terry Bethea, No. 13-4517 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4517 UNITED STATES OF AMERICA, Plaintiff Appellee, v. TERRY LEE BETHEA, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Catherine C. Eagles, District Judge. (1:12-cr-00443-CCE-1) Submitted: November 20, 2013 Decided: December 4, 2013 Before DAVIS, KEENAN, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Louis C. Allen III, Federal Public Defender, William S. Trivette, Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. Ripley Rand, United States Attorney, Andrew C. Cochran, Special Assistant United States Attorney, Winston-Salem, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Terry agreement, Lee to Hobbs Bethea Act pled guilty, robbery, in pursuant violation to of a 18 plea U.S.C. § 1951(a) (2012), and brandishing a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (2012). The district court sentenced Bethea to forty-six months imprisonment on the robbery count and a consecutive eighty-four months, the brandishing statutory count. mandatory Bethea minimum, timely on appeals, the arguing § 924(c) that the district court erred in applying a four-level enhancement for abduction, see U.S. Sentencing Guidelines Manual, § 2B3.1 (b)(4)(A) (2012), and that his sentence is unreasonable because it is greater than necessary to comply with the purposes of 18 U.S.C. § 3553(a) (2012). First, We affirm. Bethea s offense level, derived from the robbery Guideline, was increased by four levels based on the abduction of two victims during the robbery. Bethea does not contest the district court s factual findings but argues that the facts do not support an application of the enhancement. However, as counsel concedes, our decision in United States v. Osborne, 514 F.3d 377 (4th Cir. 2008), forecloses any argument that moving employees from one part of a store to another does not constitute abduction. Because "[a] panel of this court cannot overrule . . . the precedent set by a prior panel of this 2 court, this argument fails. 663 F.3d 232, 241 (4th Watkins v. SunTrust Mortg., Inc., Cir. 2011) (internal quotation marks omitted). Bethea next argues that his sentence is unreasonable. We review a sentence for reasonableness, applying a deferential abuse-of-discretion standard. 38, 41 (2007). Gall v. United States, 552 U.S. We must first ensur[e] that the district court committed no significant procedural error, such as improperly calculating the Guidelines range, insufficiently considering the § 3553(a) sentencing factors and the parties inadequately explaining the sentence imposed. Lynn, 592 F.3d 572, 575 (4th Cir. 2010) arguments, or United States v. (internal quotation marks omitted). If significant procedural error, we review it for substantive reasonableness. Gall, 552 U.S. at 51. greater the sentence is free of The sentence imposed must be sufficient, but not than sentencing]. necessary, to comply 18 U.S.C. § 3553(a). with the purposes [of In reviewing a sentence for substantive reasonableness, this court examines the totality of the circumstances. United States v. Mendoza-Mendoza, 597 F.3d 212, 2010). 216 (4th Cir. If the sentence is within the properly calculated Guidelines range, we apply a presumption on appeal that the sentence is substantively reasonable. United States v. Susi, 674 F.3d 278, 289 (4th Cir. 2012). Such a 3 presumption is rebutted only by showing that the sentence is unreasonable United when States measured v. against Montes-Pineda, 445 (internal quotation marks omitted). only reverse a sentence if it the is § F.3d 3553(a) 375, factors. 379 (2006) An appellate court will unreasonable, even appellate court would have imposed a different sentence. if the United States v. Evans, 526 F.3d 155, 160 (4th Cir. 2008). Bethea argues that he should have received a downward variance because the mandatory minimum sentence for brandishing punishes both the brandishing and the abduction. Further, Bethea contends that his sentence is greater than necessary to comply with the § 3553(a) factors because the abduction only constituted moving employees a short distance. We conclude that Bethea s sentence is not unreasonable when measured against the § 3553(a) factors. The district court rejected Bethea s argument for a below-Guidelines sentence based on the four-level enhancement overstating the seriousness of the offense, noting that Bethea victimized two individuals during the robbery. simply disagree enhancement double See 18 U.S.C. § 3553(a)(2)(A), (C). and with the punishment deference accorded Bethea s argument brandishing for the the same district that Further, we the abduction conviction subjected him to conduct. In of the of its court s light exercise sentencing discretion, we conclude that Bethea has failed to 4 rebut the presumption of within-Guidelines sentence. reasonableness accorded his Montes-Pineda, 445 F.3d at 379. Accordingly, we affirm Bethea s sentence. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 5
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