United States v. Wallace

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4225

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

BRADLEY THOMAS WALLACE,

Defendant – Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:05-cr-00062-RJC-CH-2)

Submitted: December 22, 2010 Decided: March 17, 2011

Before MOTZ, DUNCAN, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Scott Gsell, LAW OFFICE OF SCOTT GSELL, Charlotte, North
Carolina, for Appellant. Amy Elizabeth Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Bradley Thomas Wallace appeals the eighty-one-month

sentence imposed following his guilty plea to thirteen counts of

possessing counterfeit securities, in violation of 18 U.S.C.

§ 513(a) (2006); two counts of receiving and possessing stolen

mail, in violation of 18 U.S.C. § 1708 (2006); and one count of

aggravated identity theft, in violation of 18 U.S.C.

§ 1028A(a)(1) (2006). Counsel for Wallace filed a brief in this

court in accordance with Anders v. California, 386 U.S. 738

(1967), stating that there are no meritorious issues for review,

but questioning whether the district court erred when it

upwardly departed two levels upon finding that Wallace coerced a

codefendant’s participation in the criminal scheme by

threatening to kill him, and later attempted to convince him to

take full responsibility for the crimes. Wallace received

notice of his right to file a pro se supplemental brief, but did

not file one. Because we find no meritorious grounds for

appeal, we affirm.

A sentence is reviewed for reasonableness under an

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

38, 46, 51 (2007); United States v. Layton, 564 F.3d 330, 335

(4th Cir.), cert. denied, 130 S. Ct. 290 (2009). This Court

must first ensure that the district court committed no

significant procedural error, such as “‘failing to calculate (or

2
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.’” United States v. Lynn, 592 F.3d 572, 575 (4th Cir.

2010) (quoting Gall, 552 U.S. at 51) (alterations and footnote

omitted). “When reviewing a departure, we consider whether the

sentencing 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 sentencing range.” United

States v. McNeill, 598 F.3d 161, 166 (4th Cir. 2010), petition

for cert. filed, ___ U.S.L.W. ___ (U.S. July 2, 2010)

(No. 10-5258).

The presentence report assigned Jones an obstruction

of justice enhancement under U.S. Sentencing Guidelines Manual

(“USSG”) § 3C1.1. (2005). The Government moved for an upward

departure, based on its assertion that Wallace threatened to

kill Lee Jones if Jones did not participate in the criminal

activity, and later tried to get Jones to take full

responsibility for the crimes. The district court found the

Government’s factual allegations to be accurate. In addition,

the court found that this conduct warranted a two-level upward

departure, pursuant to USSG § 5K2.(a)(1), p.s., which provides

that a court “may depart from the applicable guideline range if

3
. . . there exists an aggravating or mitigating circumstance

. . . of a kind, or to a degree, not adequately taken into

consideration by the Sentencing Commission in formulating the

guidelines that, in order to advance the objectives set forth in

18 U.S.C. § 3553(a)(2), should result in a sentence different

from that described.” Under this provision, a departure may be

warranted “even though the circumstance that forms the basis for

the departure is taken into consideration in determining the

guideline range, if the court determines that such circumstance

is present in the offense to a degree substantially in excess of

. . . that which ordinarily is involved in that kind of

offense.” USSG § 5K2.0(a)(3), p.s.

In this case, the court found that Wallace’s

obstructive conduct was of a kind and to a degree not adequately

considered by the obstruction enhancement, and thus warranted a

two-level upward departure. Our review of the record convinces

us that the district court’s decision to depart and the extent

of the departure were reasonable. See United States v. Ventura,

146 F.3d 91, 97-98 (2d Cir. 1998) (justifying departure based on

multiple, unrelated acts of obstruction); United States v.

Furkin, 119 F.3d 1276, 1283-85 (7th Cir. 1997) (approving upward

departure for multiple acts of obstruction, including

threatening witnesses).

4
In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal.

We therefore affirm the district court’s judgment. This court

requires that counsel inform Wallace, in writing, of the right

to petition the Supreme Court of the United States for further

review. If Wallace requests that a petition be filed, but

counsel believes that such a petition would be frivolous, then

counsel may move in this court for leave to withdraw from

representation. Counsel’s motion must state that a copy thereof

was served on Wallace.

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