United States v. Hodge

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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