UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4848
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DERRICK MAURICE HODGE,
Defendant - Appellant.
No. 09-5024
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHAD DYLAN GRANT,
Defendant - Appellant.
Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:07-cr-00377-WO-1; 1:07-cr-00377-WO-2)
Submitted: March 31, 2011 Decided: April 11, 2011
Before MOTZ, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert A. Broadie, CAROLINA LEGAL SOLUTIONS, High Point, North
Carolina; Eugene E. Lester, III, SHARPLESS & STAVOLA, PA,
Greensboro, North Carolina, for Appellants. John W. Stone, Jr.,
Acting United States Attorney, Frank J. Chut, Jr., Assistant
United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Derrick Maurice Hodge and Chad Dylan Grant pled guilty
pursuant to plea agreements to one count of interference with
commerce by threats or violence in violation of 18 U.S.C. § 1951
(2006). Defendants contend that the district court erred in
calculating their advisory Guidelines ranges by assessing a
two-level enhancement to their offense levels for their roles in
the offense.
The district court’s determination that a sentencing
enhancement is warranted is a factual determination reviewed for
clear error. United States v. Thorson, ___ F.3d ___, 2010 WL
5646048, at *3 (4th Cir. Jan. 28, 2011); United States v. Slade,
631 F.3d 185, 188 (4th Cir. 2011); United States v. Kellam, 568
F.3d 125, 147-48 (4th Cir.), cert. denied, 130 S. Ct. 657
(2009). Reversal for clear error is warranted only where we are
left with the “definite and firm conviction that a mistake has
been committed.” United States v. Harvey, 532 F.3d 326, 337
(4th Cir. 2008) (internal quotation marks omitted).
A defendant qualifies for a two-level enhancement if
he was an “organizer, leader, manager, or supervisor in any
criminal activity” that did not involve five or more
participants or was not otherwise extensive. U.S. Sentencing
Guidelines Manual § 3B1.1(c) (2008). The leadership
enhancement “is appropriate where the evidence demonstrates that
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the defendant controlled the activities of other participants or
exercised management responsibility.” Slade, 631 F.3d at 190
(internal quotation marks omitted). The facts establishing the
enhancement must be supported by a preponderance of the
evidence. Harvey, 532 F.3d at 337.
We have reviewed the evidence of record and conclude
that the district court did not clearly err in applying the
enhancement. The testimony of co-conspirators at sentencing
established that the Defendants directed co-conspirators in the
robbery of a trailer load of cigarettes, paid others in the
conspiracy, negotiated the sale of the stolen goods, and
recruited participants in the crime. Defendants’ contention
that their roles in the offense were indistinguishable from the
others involved is belied by the record, and we find that the
district court’s factual findings in this regard are supported
by a preponderance of the evidence.
Next, Defendant Grant requests remand to the district
court for amendment of his sentence under Fed. R. Crim. P. 36.
Grant filed a Rule 36 motion in the district court while his
case was on appeal, asking the court to add a recommendation
that he be housed in a Bureau of Prisons facility as close as
possible to his place of residence, and to allow him to
participate in the inmate financial responsibility program. The
district court acknowledged the oversight but denied the motion
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without prejudice, as it was without jurisdiction to grant
relief while the matter is on appeal. We decline to remand, as
we note that Grant may refile his motion in the district court
once this appeal has concluded.
Accordingly, we 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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