United States v. Sutton

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-4592

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

MARVIN ALEXANDER SUTTON, JR.,

Defendant – Appellant.

No. 08-4756

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

LAVAR JAVIER FIELDS,

Defendant – Appellant.

Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (5:07-cr-00130-D-2; 5:07-cr-00130-D-1)

Submitted: October 20, 2010 Decided: November 19, 2010

Before MOTZ, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.

Deborrah L. Newton, NEWTON LAW, Raleigh, North Carolina,
Bridgett Britt Aguirre, Fuquay-Varina, North Carolina, for
Appellants. George E. B. Holding, United States Attorney,
Michael G. James, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Marvin Alexander Sutton, Jr., pled guilty without a

plea agreement to one count of conspiracy, in violation of

18 U.S.C. § 371 (2006), and one count of aiding and abetting

bank robbery, in violation of 18 U.S.C. §§ 2, 2113(a) (2006).

After imposing an upward departure, the district court sentenced

Sutton to concurrent sentences of 60 months’ imprisonment on the

conspiracy count and 72 months’ imprisonment on the bank robbery

count. Lavar Javier Fields pled guilty without a plea agreement

to one count of conspiracy, in violation of 18 U.S.C. § 371, and

two counts of aiding and abetting bank robbery, in violation of

18 U.S.C. §§ 2, 2113(a). After imposing an upward departure,

the district court sentenced Fields to concurrent sentences of

60 months’ imprisonment on the conspiracy count and 90 months’

imprisonment on each of the bank robbery counts. Sutton and

Fields timely appeal and challenge their sentences. We affirm.

We review a district court’s sentence, including a

departure sentence, for reasonableness under a “deferential

abuse-of-discretion” standard. Gall v. United States, 552 U.S.

38, 41, 51 (2007). In conducting this review, we first examine

the sentence for “significant procedural error, such as 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

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based on clearly erroneous facts, or failing to adequately

explain the chosen sentence.” Id. 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. In reviewing a sentence

outside the advisory Guidelines range, we consider whether the

district court acted reasonably “both with respect to its

decision to impose such a sentence and with respect to the

extent of the divergence from the [G]uideline[s] range.” United

States v. Perez-Pena, 453 F.3d 236, 241 (4th Cir. 2006).

Fields challenges the district court’s decision to

adopt the recommendation of his presentence report (“PSR”) and

calculate his Guidelines range for the bank robbery counts using

U.S. Sentencing Guidelines Manual (“USSG”) § 2B3.1 (Robbery),

rather than USSG § 2B2.1 (Burglary of a Residence or a Structure

Other than a Residence) (2007). Fields, however, failed to

object in writing to his PSR’s use of USSG § 2B3.1 to calculate

his offense level within the fourteen-day time frame prescribed

by Fed. R. Crim. P. 32(f)(1). Accordingly, our review is for

plain error. See United States v. Olano, 507 U.S. 725, 731

(1993) (quoting with approval Yakus v. United States, 321 U.S.

414, 444 (1944) (“No procedural principle is more familiar to

this Court than that a . . . right may be forfeited in criminal

as well as civil cases by the failure to make timely assertion

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of the right before a tribunal having jurisdiction to determine

it.”)). To prevail under this standard, Fields must show that

plain error by the district court affected his substantial

rights. See Puckett v. United States, 129 S. Ct. 1423, 1429

(2009). Even if Fields makes this showing, however, correction

of the error is within our discretion, which we do not exercise

unless the error “seriously affects the fairness, integrity or

public reputation of judicial proceedings.” Id. (internal

quotation marks and alteration omitted).

Where, as here, the statute under which a defendant is

convicted proscribes a variety of conduct that may fall under

several Sentencing Guidelines, 1 the district court must

“determine which of the referenced [G]uideline sections is most

appropriate” for the offense of conviction. USSG § 1B1.2, cmt.

n.1. To accomplish this, the court “should compare the

[G]uideline texts with the charged misconduct, rather than the

statute (which may outlaw a variety of conduct implicating

several [G]uidelines) or the actual conduct (which may include

factors not elements of the indicted offense).” United

States v. Lambert, 994 F.2d 1088, 1092 (4th Cir. 1993).

1
The Statutory Index to the Guidelines lists USSG §§ 2B1.1,
2B2.1, 2B3.1, and 2B3.2 as potentially applicable to a violation
of 18 U.S.C. § 2113(a). See USSG App. A.

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Here, the indictment charged Fields and his co-

defendants with breaking into and stealing United States

currency from automated teller machines containing “money in the

care, custody[,] and control of Lumbee Guaranty Bank, a bank

whose deposits were then insured by the Federal Deposit

Insurance Corporation,” in violation of 18 U.S.C. § 2113(a).

Section 2B3.1(b)(1) of the Guidelines permits an enhancement for

the taking of property of a financial institution; USSG § 2B2.1,

by contrast, does not address harm to a financial institution.

Compare USSG § 2B3.1(b)(1) (“If the property of a financial

institution . . . was taken, or if the taking of such property

was an object of the offense, increase by 2 levels.”) with USSG

§ 2B2.1 (addressing burglary of a residence or a structure other

than a residence). Because the object of the Defendants’

robberies was the property of a financial institution, we

conclude the Guideline that most closely fits the offenses is

USSG § 2B3.1. See United States v. Smith, 320 F.3d 647, 656-57

(6th Cir. 2003) (holding that USSG § 2B3.1 was the most

appropriate Guideline where the object of extortion was bank

robbery); see also United States v. Alexander, 48 F.3d 1477,

1491 (9th Cir. 1995) (stating that the Sentencing Commission

sought with USSG § 2B3.1(b)(1) to punish robberies of financial

institutions more severely because “these entities typically

keep large amounts of readily available cash, and are therefore

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particularly attractive robbery targets”). Accordingly, the

district court did not plainly err in calculating Fields’s

offense level under USSG § 2B3.1.

Both Sutton and Fields challenge the district court’s

decision to upwardly depart from their advisory Guidelines

ranges based on additional, uncharged robberies and attempted

robberies. Under the Guidelines,

[a district] court may depart upward to reflect the
actual seriousness of the offense based on conduct (1)
underlying a charge dismissed as part of a plea
agreement in the case, or underlying a potential
charge not pursued in the case as part of a plea
agreement or for any other reason; and (2) that did
not enter into the determination of the applicable
[G]uideline[s] range.

USSG § 5K2.21, p.s. This Guideline requires only “some degree”

of connection between charged and uncharged offenses, and even a

“remote connection” will suffice to support the departure.

United States v. Newsom, 508 F.3d 731, 735 (5th Cir. 2007)

(collecting cases and aligning with circuits interpreting that

section as requiring only a remote relationship). After review

of the record, we conclude that Sutton’s and Fields’s challenge

is without merit. The offense conduct to which they pleaded

guilty involved the early morning robberies of automated teller

machines (“ATMs”) in Food Lion grocery stores in Fayetteville,

North Carolina. The undisputed testimony at sentencing

implicated Sutton and Fields in five other robberies and

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attempted robberies of ATMs in Food Lion grocery stores in North

Carolina and Virginia. 2 The modus operandi of the uncharged

offenses – early morning entry into the Food Lion through the

removal of a glass pane – was the same as was utilized in the

charged robberies. Additionally, the charged and uncharged

offenses occurred in temporal and geographic proximity, and the

uncharged robberies, like the charged robberies, involved

thousands of dollars per robbery. We therefore conclude there

was a sufficient connection between the uncharged and charged

offenses and that the district court did not err in relying on

USSG § 5K2.21, p.s., as the basis for its departures.

Finally, Fields challenges the extent of the district

court’s upward departure on the bank robbery counts. However,

given Fields’s participation in five additional uncharged

robberies and attempted robberies involving significant sums of

money and damage to property, the extent of the upward

departure, which led to a sentence only nineteen months longer

2
Sutton and Fields suggest that their involvement in the
additional, uncharged robberies and attempted robberies was not
sufficiently proved. Facts deemed relevant to a departure from
a Guidelines sentencing range, however, need only be proved by a
preponderance of the evidence. See United States v. Grubbs, 585
F.3d 793, 799 (4th Cir. 2009), cert. denied, 130 S. Ct. 1923
(2010). After review of the record, we conclude that the
district court did not clearly err in finding Sutton’s and
Fields’s participation in the uncharged offenses by a
preponderance of the evidence.

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than the top of the original advisory Guidelines range, was

reasonable. We therefore affirm the district court’s judgments.

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