United States v. Carlos Riley, Jr.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4266

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

CARLOS ANTONIO RILEY, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:13-cr-00122-TDS-1)

Submitted: January 20, 2015 Decided: February 3, 2015

Before KEENAN, WYNN, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael E. Archenbronn, LAW OFFICE OF MICHAEL E. ARCHENBRONN,
Winston-Salem, North Carolina, for Appellant. Ripley Rand,
United States Attorney, Kyle D. Pousson, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Carlos Antonio Riley, Jr., pleaded guilty to one count

of being a felon in possession of a firearm, in violation of 18

U.S.C. §§ 922(g)(1), 924(a)(2) (2012). The conviction was

predicated on an altercation between Riley and a law enforcement

officer; during the altercation, Riley obtained the officer’s

firearm and shot him in the leg. Riley was sentenced to the

statutory maximum of ten years’ imprisonment, which was also the

Sentencing Guidelines range. On appeal, Riley raises three

challenges to the calculation of his Sentencing Guidelines

range, and he contests the reasonableness of his sentence.

Finding no error, we affirm.

We review Riley’s sentence for reasonableness,

applying an abuse of discretion standard. Gall v. United

States, 552 U.S. 38, 51 (2007). We first review for

“significant procedural error[s],” including, among other

things, whether the Guidelines range was calculated incorrectly.

Id. When reviewing the district court’s application of the

Guidelines, we review findings of fact for clear error and

questions of law de novo. United States v. Strieper, 666 F.3d

288, 292 (4th Cir. 2012). Only if we find a sentence

procedurally reasonable will we consider whether it is

substantively reasonable. Id. We presume a sentence is

substantively reasonable if it is imposed within the properly

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calculated Guidelines range. See United States v. Louthian, 756

F.3d 295, 306 (4th Cir.), cert. denied, 135 S. Ct. 421 (2014).

This presumption may only be rebutted with a showing that the

sentence is unreasonable when measured against the 18 U.S.C.

§ 3553(a) (2012) factors. Id.

In his first sentencing challenge, Riley claims that

the district court erred in crediting the testimony of the

police officer and in finding that Riley’s firearms offense was

related to an underlying robbery offense. The calculation of

Riley’s offense level began with the application of U.S.

Sentencing Guidelines Manual (USSG) § 2K2.1(c)(1) (2012), the

Guideline applicable to offenses involving unlawful possession

of firearms. Because Riley’s firearms offense was committed in

connection with another offense, section 2K1.1(c)(1)(A) provides

a cross-reference to USSG § 2X1.1. That section, in turn,

directs application of the base offense level for the underlying

substantive offense. The substantive offense used by the

probation officer in formulating the presentence report (PSR)

was robbery. See USSG § 2B3.1.

When determining whether the underlying offense was

indeed robbery, the district court considered the testimony of

both Riley and the law enforcement officer. The court credited

the officer’s testimony, finding that Riley took the firearm

away from the officer after a struggle, put a magazine into the

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firearm, chambered a round, and pointed the firearm at the

officer. Riley argues that the court erred by crediting the

officer’s testimony. Under clear error review, we may decide

that a factual finding is clearly erroneous only if we are left

with the definite and firm conviction that a mistake has been

made. United States v. Harvey, 532 F.3d 326, 336-37 (4th Cir.

2008). Nothing in the record calls into question the district

court’s decision to credit the testimony of the law enforcement

officer. See, e.g., United States v. McLean, 715 F.3d 129, 145

(4th Cir. 2013) (deferring to district court’s decision to

credit witness’s testimony). Because Riley’s conduct, as found

by the district court, constituted robbery under North Carolina

law, see North Carolina v. Maness, 677 S.E.2d 796, 810 (N.C.

2009), the court properly applied the base offense level for

USSG § 2B3.1.

Riley next challenges the enhancement applied under

USSG § 3A1.2(c)(1). Pursuant to that section, six levels are

added to the offense level if the defendant assaulted the

officer during the course of the offense or immediate flight

therefrom and created a substantial risk of serious bodily

injury. An assault is a threat or use of force with the intent

to create bodily injury. United States v. Hampton, 628 F.3d

654, 660 (4th Cir. 2010). The application notes to the relevant

Guidelines provision state that the enhancement applies in

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circumstances “tantamount to aggravated assault.” USSG § 3A1.2

cmt. n.4(a). Riley argues that the district court erred in

applying this enhancement. We have reviewed the record and the

district court’s factual findings and conclude there was no

error in the district court’s finding that Riley engaged in

“assaultive resistance to arrest;” thus, the addition of six

levels to the offense level was proper. Hampton, 628 F.3d at

660-61.

Riley next contends that the district court erred in

declining to award him an acceptance of responsibility

reduction. Under USSG § 3E1.1(a), the sentencing court should

decrease the offense level by two levels if the defendant

clearly demonstrates acceptance of responsibility for his

offense. When the district court determines that the defendant

qualifies for a decrease under subsection (a), the offense level

may be decreased by one additional level under § 3E1.1(b), if

the government so moves. In order to receive a reduction

pursuant to USSG § 3E1.1, “the defendant must prove by a

preponderance of the evidence that he has clearly recognized and

affirmatively accepted personal responsibility for his criminal

conduct.” United States v. May, 359 F.3d 683, 693 (4th Cir.

2004) (internal quotation marks omitted). “[A] defendant who

falsely denies, or frivolously contests, relevant conduct that

the court determines to be true has acted in a manner

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inconsistent with acceptance of responsibility.” USSG § 3E1.1

cmt. n.1(A). Because Riley denied the relevant conduct of

attempting to disarm the officer, the district court’s decision

was not clearly erroneous.

Finally, Riley asserts that his sentence was

unreasonable. He contends that the district court “placed undue

weight on the nature of the crime,” referring to the Guidelines

calculation challenges addressed above. (Appellant’s Br. at 20-

22). Because we have concluded that those challenges are

meritless, and because Riley’s within-Guidelines sentence is

entitled to a presumption of reasonableness — a presumption he

has not rebutted in any fashion — we conclude that his sentence

was reasonable.

Accordingly, we affirm Riley’s sentence. We dispense

with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and

argument would not aid the decisional process.

AFFIRMED