US v. Ramone Ethridge, No. 12-4225 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4225 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RAMONE HAISON ETHRIDGE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:10-cr-00206-BO-2) Submitted: March 20, 2013 Decided: April 4, 2013 Before WILKINSON and DAVIS, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Michael W. Patrick, LAW OFFICE OF MICHAEL W. PATRICK, Chapel Hill, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Ramone Haison Ethridge was convicted after a jury trial of aiding and abetting the possession of stolen firearms, in violation of 18 The district court range the under U.S.C. §§ 2, calculated U.S. 922(j), Ethridge s Sentencing 924(a)(2) advisory Guidelines (2006). Guidelines Manual ( USSG ) (2010) at forty-one to fifty-one months imprisonment, imposed an upward variance, imprisonment. and sentenced Ethridge 120 months On appeal, Ethridge challenges this sentence as procedurally and substantively unreasonable. We to review the district court s We affirm. sentence, whether inside, just outside, or significantly outside the Guidelines range, under a deferential abuse-of-discretion Gall v. United States, 552 U.S. 38, 41 (2007). review involves sentence for two steps; significant under the procedural standard. This standard of first, errors, second, we review the substance of the sentence. we examine and the under the United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007) (examining Gall, 552 U.S. at 50-51). Significant procedural errors include failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) [(2006)] factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence including an explanation for any 2 deviation from the Guidelines range. Gall, 552 U.S. at 51. If there are no significant procedural errors, we then consider the substantive reasonableness of the sentence, tak[ing] into account the totality of the circumstances. Id. When the district court imposes a variant sentence, we consider whether the . . . court respect to its decision respect to the extent range. impose the reasonably such a divergence both with and with sentence from the sentencing United States v. Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 2007). district court sentence outside range. of to acted Such a sentence is unreasonable if the relie[d] the on improper properly factors calculated in imposing advisory a sentencing Id. Ethridge argues that his sentence is procedurally unreasonable because the district court erred in applying the enhancements under USSG § 3C1.1 for obstruction of justice and USSG § 3C1.2 for reckless endangerment calculating his Guidelines range. during flight in In assessing challenges to the district court s application of the Guidelines, we review the court s factual findings conclusions de novo. for clear error and its legal United States v. Alvarado Perez, 609 F.3d 609, 612 (4th Cir. 2010). Section 3C1.1 of the Guidelines provides for a twolevel enhancement to a defendant s 3 offense level if the 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 to the defendant s offense of conviction and any relevant conduct. USSG § 3C1.1. includes Obstructive conduct within the meaning of § 3C1.1 committing, perjury. suborning, Id., cmt. n.4(B). or attempting to suborn Subornation of perjury consists of three elements: the suborner (1) should have known or believed or have had good reason to believe that the testimony given would be false ; (2) should have known or believed that the witness would testify willfully and corruptly, and with knowledge of the falsity ; and (3) should have knowingly and willfully induced or procured the witness to give such false testimony. Petite v. United States, 262 F.2d 788, 794 (4th Cir. 1959) (internal quotation marks omitted), vacated on other grounds, 361 U.S. 529 (1960); see also United States v. Heater, 63 F.3d 311, 320 (4th Cir. 1995) ( Subornation of perjury consists of procuring or instigating another to commit the crime of perjury. ). After review of the record and the parties briefs, we conclude that the district court did not err in applying the two-level enhancement under USSG § 3C1.1. The trial testimony the district court credited established that Ethridge attempted 4 to suborn testify perjury falsely circumstances by at knowingly trial urging concerning underlying the a offense his co-defendant material matter with the intent to the to deceive the jury. We also reject Ethridge s appellate challenge to the district court s application of the two-level enhancement under USSG § 3C1.2. court to That section of the Guidelines directs a district increase a defendant s offense level by two levels [i]f the defendant recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer. USSG § 3C1.2. Under this section, a defendant is accountable for [his] own conduct and for conduct that [he] aided or abetted, counseled, commanded, induced, procured, or willfully caused. n.5. Because Application Note 5 to USSG § 3C1.2 limits the defendant s court Id., cmt. has responsibility held that for the some actions form of of another, direct or this active participation on the part of the defendant is necessary for the enhancement to apply when the reckless flight is the result of another person s action. United States v. Chong, 285 F.3d 343, 346 (4th Cir. 2002) (internal quotation marks omitted). Here, the record establishes that Ethridge actively aided or abetted his co-defendant s reckless flight from the police. 5 Ethridge also argues that his sentence is otherwise procedurally variance unreasonable was based because were the adequately grounds on accounted which for in the the Guidelines range and because the district court premised its variance decision on an erroneous computation of his criminal history category. Ethridge further challenges as unreasonable the extent of the upward variance. We reject these arguments. At sentencing after ruling on Ethridge s objections to the presentence report, calculating his Guidelines range, giving him the opportunity to allocute, and hearing argument from counsel the district court concluded that an upward variance under 18 U.S.C. § 3553(a) to 120 months imprisonment was necessary reaching this Ethridge s sentence to achieve conclusion, history to the afford and purposes the court sentencing. properly characteristics adequate of and deterrence the and considered need to In for the protect the public, 18 U.S.C. § 3553(a)(1), (2)(B)-(C), making note of his multiple lenient prior convictions punishments he for breaking received for and these entering, the offenses, the escalating nature of his larcenies, and the fact that he was on probation when he committed the aiding and abetting offense. The court also properly considered the need for the sentence to promote respect for the law, 18 U.S.C. § 3553(a)(2)(A), making note of Ethridge s false testimony 6 at trial and efforts to persuade his court s co-defendant consideration of to testify the falsely. * relevant 18 The U.S.C. district § 3553(a) factors and articulation of its reasons for varying from the Guidelines range support our decision to defer to its determination as to the extent of the variance. See United States (4th v. Diosdado-Star, 630 F.3d 359, 366-67 Cir.) (affirming substantive reasonableness of variance sentence six years greater than Guidelines range because sentence was based on the district court s examination of the § 3553(a) factors), cert. denied, 131 S. Ct. 2946 (2011); see also United States v. Angle, 598 F.3d 352, 359 (7th Cir. 2010) ( All that matters is that the sentence imposed be reasonable in relation to the package of reasons given by the court. ). We therefore We dispense with contentions are oral affirm the argument adequately district because presented in court s judgment. the facts and the materials legal before this court and argument would not aid the decisional process. AFFIRMED * We find no merit to Ethridge s assertion that the district court premised its decision to vary upwardly on an erroneous computation of his criminal history category. 7

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