UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4147
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICHARD FOSTER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Cameron McGowan Currie, District
Judge. (0:06-cr-01219-CMC-1)
Submitted: January 26, 2009 Decided: February 20, 2009
Before NIEMEYER, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Nicole E. Nicolette, THE MACE FIRM, Myrtle Beach, South Carolina,
for Appellant. W. Walter Wilkins, United States Attorney, Robert
C. Jendron, Jr., Assistant United States Attorney, Columbia, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Richard Foster appeals his 168-month sentence imposed
upon his guilty plea to armed bank robbery, in violation of 18
U.S.C. § 2113(a), (d) (2000). He challenges the imposition of an
obstruction of justice enhancement, the denial of an acceptance of
responsibility adjustment, and contends that his sentence is
unreasonable. We affirm.
In order to apply a sentencing enhancement for
obstruction of justice under U.S. Sentencing Guidelines Manual
(“USSG”) § 3C1.1 (2007), the sentencing court must conclude that
the defendant “willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice during the
investigation, prosecution, or sentencing of the instant offense of
conviction” and that the “obstructive conduct related to” the
offense of conviction or a related offense. Examples of
obstructive conduct are “committing, suborning, or attempting to
suborn perjury”; “providing materially false information to a
judge”; and “providing materially false information to a probation
officer in respect to a presentence or other investigation for the
court.” USSG § 3C1.1, comment. (n.4).
Foster’s false statements regarding both the proceeds
from the robbery and his knowledge about the use of a firearm were
material to sentencing. If believed, his statements would have
affected the guideline calculation, which included both a firearm
2
enhancement and an enhancement for his role in the offense, as well
as the court’s determination of the sentence in light of the 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2008) factors. Therefore,
the district court did not clearly err in concluding that § 3C1.1
applied.
Section 3E1.1(a) of the Sentencing Guidelines provides
for a two-level decrease of the offense level if a defendant
clearly demonstrates acceptance of responsibility. An adjustment
for obstruction of justice “ordinarily indicates that the defendant
has not accepted responsibility,” except in “extraordinary cases in
which adjustments under both §§ 3C1.1 and 3E1.1 may apply.” USSG
§ 3E1.1, comment. (n.4).
The court did not clearly err in finding that Foster
failed to demonstrate that his case was an extraordinary one where
both adjustments may be applied. See United States v. Hudson, 272
F.3d 260, 263 (4th Cir. 2001) (defendant has the burden of showing
that his circumstances are extraordinary). Foster lied to
investigators and the court in an attempt to minimize his role in
the offense at the same time that he was pleading guilty, and
maintained this stance through the sentencing hearing.
Finally, we review sentences imposed by district courts
for reasonableness, applying an abuse of discretion standard. Gall
v. United States, 128 S. Ct. 586, 597-98 (2007); United States v.
Pauley, 511 F.3d 468, 473-74 (4th Cir. 2007). When sentencing a
3
defendant, a district court must: (1) properly calculate the
guideline range; (2) determine whether a sentence within that range
serves the factors set out in 18 U.S.C.A. § 3553(a); (3) implement
mandatory statutory limitations; and (4) explain its reasons for
selecting a sentence. Pauley, 511 F.3d at 473. In the Fourth
Circuit, “[a] sentence within the proper Sentencing Guidelines
range is presumptively reasonable.” United States v. Allen, 491
F.3d 178, 193 (4th Cir. 2007); see Rita v. United States, 551 U.S.
338, __; 127 S. Ct. 2456, 2462-69 (2007) (upholding presumption of
reasonableness for within-guidelines sentence).
Here, the district court correctly calculated the
guideline range, treated the guidelines as advisory, and considered
the § 3553(a) factors. Although the district court did not
explicitly discuss each § 3553(a) factor, it was not required to do
so. See United States v. Moulden, 478 F.3d 652, 657 (4th Cir.
2007) (the district court “need not robotically tick through §
3553(a)’s every subsection” but should “provide [this court] an
assurance that the sentencing court considered the § 3553(a)
factors with regard to the particular defendant before [it]
. . . .”). Additionally, although the district court imposed a
sentence at the top of the guideline range, the court also
exercised its discretion, over the Government’s opposition, in
ordering the federal sentence to run concurrently with the state
sentence Foster was serving. See USSG § 5G1.3(c). Furthermore,
4
although the court noted Foster’s lies during the investigation as
a basis for its selection of a sentence at the top of the range,
the court explicitly noted that it was not solely relying on the
conduct that resulted in the obstruction enhancement and loss of
acceptance of responsibility.
Neither Foster nor the record suggests any information so
compelling as to rebut the presumption that a sentence within the
properly calculated guideline range is reasonable. Accordingly, we
affirm Foster’s 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
5