UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4592
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MARVIN ALEXANDER SUTTON, JR.,
Defendant – Appellant.
No. 08-4756
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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