UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4069
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARCUS DWAYNE HILL,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:13-cr-00211-WO-1)
Submitted: July 21, 2014 Decided: July 31, 2014
Before NIEMEYER and DUNCAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Brian Michael Aus, Durham, North Carolina, for Appellant. Terry
Michael Meinecke, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marcus Dwayne Hill appeals his conviction and the
seventy-eight-month sentence imposed following his guilty plea
to possession of a firearm by a convicted felon, in violation of
18 U.S.C. §§ 922(g)(1), 924(a)(2) (2012). On appeal, Hill’s
counsel filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), asserting that there are no meritorious grounds for
appeal but questioning whether the district court properly
applied the four-level enhancement found at U.S. Sentencing
Guidelines Manual (“USSG”) § 2K2.1(b)(4)(B) (2012). Hill filed
two pro se supplemental briefs — in the first brief, he
challenged the USSG § 2K2.1(b)(4)(B) enhancement; in the second
brief, he argued that he was entitled to credit for time served
in state custody for the conduct underlying the instant offense,
pursuant to 18 U.S.C. § 3568 (2012). Finding no meritorious
grounds for appeal, we affirm.
Both Hill and counsel question whether the district
court erred in assessing the USSG § 2K2.1(b)(4)(B) enhancement
since an unindicted suspect, not Hill, possessed the firearm
with the obliterated serial number. Arguably, Hill has waived
appellate review of the propriety of the enhancement. See
United States v. Robinson, 744 F.3d 293, 298-99 (4th Cir. 2014)
(discussing waiver of appellate review when defendant withdrew
objection to presentence report at sentencing). Even if Hill
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did not validly waive appellate review, however, we conclude
that the district court did not plainly err in applying the
enhancement. See United States v. Branch, 537 F.3d 328, 343
(4th Cir. 2008) (holding where objection not made below, review
is for plain error); see also United States v. Olano, 507 U.S.
725, 732 (1993) (providing plain error standard).
Section 2K2.1(b)(4)(B) of the Sentencing Guidelines
provides for a four-level enhancement where the defendant
possessed a firearm with an altered or obliterated serial
number. The enhancement “applies regardless of whether the
defendant knew or had reason to believe that the firearm . . .
had an altered or obliterated serial number.” USSG
§ 2K2.1(b)(4) cmt. n.8(B); see United States v. Brown, 514 F.3d
256, 269 (2d Cir. 2008) (finding that USSG § 2K2.1(b)(4) imposes
strict liability). Further, a defendant is responsible for “all
reasonably foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal activity,”
whether or not the criminal activity is charged as a conspiracy.
USSG § 1B1.3(a)(1)(B); see United States v. Kimberlin, 18 F.3d
1156, 1160 (4th Cir. 1994) (finding firearm carried by co-
conspirator attributable to defendant if, under the
circumstances, “it was reasonably foreseeable to defendant that
his co-participant was in possession of a firearm”) (internal
quotation marks and brackets omitted).
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Upon review of the record, we conclude that it was
reasonably foreseeable to Hill that his co-participant in the
underlying attempted breaking and entering would be carrying a
firearm. Thus, the district court did not err, much less
plainly err, in applying the USSG § 2K2.1(b)(4) enhancement.
As to Hill’s second pro se argument, that he is
entitled to credit for time served in state custody for the
conduct underlying the instant offense, we conclude that Hill is
not entitled to relief because the district court does not have
the authority to award credit for time served. See United
States v. Wilson, 503 U.S. 329, 333-37 (1992) (concluding that
Attorney General, through Federal Bureau of Prisons, has sole
authority to award credit for time served under 18 U.S.C.
§ 3585(b)(1) (2012)).
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
The district court fully complied with Federal Rule of Criminal
Procedure 11 in accepting Hill’s guilty plea, and the sentence
is both procedurally and substantively reasonable. We therefore
affirm the district court’s judgment. This court requires that
counsel inform Hill, in writing, of his right to petition the
Supreme Court of the United States for further review. If Hill
requests that a petition be filed, but counsel believes that
such a petition would be frivolous, counsel may move in this
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court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Hill. We
dispense with oral argument because the facts and legal
conclusions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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