UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4225
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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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
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. . . 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).
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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
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