UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4942
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LAKENDRICK FOBBS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
District Judge. (CR-03-310)
Submitted: October 21, 2005 Decided: November 15, 2005
Before WILLIAMS, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert J. McAfee, MCAFEE LAW, P.A., New Bern, North Carolina, for
Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Lakendrick Fobbs was convicted after a trial of one count
of conspiracy to commit armed bank robbery, in violation of 18
U.S.C. § 371 (2000), armed bank robbery and aiding and abetting
such robbery, in violation of 18 U.S.C. §§ 2, 2113(a), (d) (2000),
and one count of using, carrying and brandishing a firearm during
and in relation to a crime of violence and aiding and abetting such
conduct, in violation of 18 U.S.C. §§ 2, 924(c)(1) (2000). On
appeal, Fobbs contends the district court erred in denying his
motion to suppress custodial statements. He further contends the
evidence was insufficient. In addition, Fobbs claims the district
court erred in finding he obstructed justice. Finding no error, we
affirm.
We review factual findings underlying a suppression
motion for clear error; legal conclusions are subject to de novo
review. United States v. Grossman, 400 F.3d 212, 216 (4th Cir.
2005). When a suppression motion is denied, we review the evidence
in the light most favorable to the Government. United States v.
Perkins, 363 F.3d 317, 320 (4th Cir. 2004), cert. denied, 125 S.
Ct. 867 (2005). We find the district court did not clearly err in
finding that Fobbs initiated the contact with law enforcement
authorities and he was fully advised of his rights prior to the
start of the interview.
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A defendant challenging the sufficiency of the evidence
faces a heavy burden. See United States v. Beidler, 110 F.3d 1064,
1067 (4th Cir. 1997). When, as here, the defendant challenges the
sufficiency of the evidence at trial, the relevant question is
whether, taking the view most favorable to the Government, there is
substantial evidence to support the verdict. See Glasser v. United
States, 315 U.S. 60, 80 (1942). We “defined ‘substantial
evidence,’ in the context of a criminal action, as that evidence
which ‘a reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant's guilt beyond a
reasonable doubt.’” United States v. Newsome, 322 F.3d 328, 333
(4th Cir. 2003) (quoting United States v. Burgos, 94 F.3d 849,
862-63 (4th Cir. 1996) (en banc)). We “must consider
circumstantial as well as direct evidence, and allow the Government
the benefit of all reasonable inferences from the facts proven to
those sought to be established.” United States v. Tresvant, 677
F.2d 1018, 1021 (4th Cir. 1982). We find the evidence was more
than sufficient to support the convictions.
Under U.S. Sentencing Guidelines Manual § 3C1.1 (2003),
a two level enhancement may be appropriate if the defendant
attempts to obstruct the administration of justice during
sentencing and the obstruction relates to the offense of
conviction. The court need only find by a preponderance of the
evidence the enhancement applies. United States v. Kiulin, 360
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F.3d 456, 460 (4th Cir. 2004). Under this standard, the relevant
facts must be shown to be more likely true than not. United
States v. Montano, 250 F.3d 709, 713 (9th Cir. 2001). Despite the
fact the guidelines are no longer mandatory, a court must still
“consult [the] [g]uidelines and take them into account when
sentencing.” United States v. Booker, 543 U.S.___, ___, 125 S.
Ct. 738, 767 (2005) (Breyer, J., opinion of the Court). We find
there was ample evidence to support the enhancement as a result of
Fobbs’ statement that he did not receive the presentence
investigation report.
Finally, because the district court announced an
alternate sentence identical to the sentence imposed under a
mandatory application of the sentencing guidelines, we find any
error as to the mandatory application of the guidelines to be
harmless. See Booker, 543 U.S. at ___, 125 S. Ct. at 769;
Williams v. United States, 503 U.S. 193, 203 (1992).
Accordingly, we affirm the convictions and sentence. 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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