Certiorari granted by Supreme Court, June 23, 2014
Affirmed by Supreme Court, January 13, 2015
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4956
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LARRY WHITFIELD,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:09-cr-00009-RJC-DCK-1)
Submitted: November 27, 2013 Decided: December 10, 2013
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Henderson Hill, Executive Director, Joshua B. Carpenter,
Appellate Counsel, Asheville, North Carolina; Erin K. Taylor,
Kevin A. Tate, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant. Anne M.
Tompkins, United States Attorney, William M. Miller, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Larry Whitfield appeals from the amended criminal
judgment imposed following our remand of his case to the
district court for resentencing for his forced accompaniment
conviction under 18 U.S.C. § 2113(e) (2012). See United States
v. Whitfield, 695 F.3d 288, 311 (4th Cir. 2012). At the
resentencing hearing, Whitfield challenged the district court’s
application of U.S. Sentencing Guidelines Manual (“USSG”)
§ 2A1.1 (2009). The district court rejected Whitfield’s
argument, concluding that his conduct caused the death of the
victim, Mary Parnell. The court imposed a 264-month sentence
for Whitfield’s § 2113(e) conviction.
On appeal, Whitfield first contends that the district
court erred by miscalculating his Guidelines range. We review
Whitfield’s sentence under a deferential abuse-of-discretion
standard. Gall v. United States, 552 U.S. 38, 41 (2007). This
review requires consideration of both the procedural and
substantive reasonableness of the sentence. Id. at 51; United
States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). In
determining procedural reasonableness, we consider whether the
district court properly calculated the defendant’s advisory
Guidelines range, considered the 18 U.S.C. § 3553(a) (2012)
factors, and sufficiently explained the selected sentence.
Gall, 552 U.S. at 51.
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In assessing whether a district court properly
calculated the Guidelines range, “including application of any
sentencing enhancements, we review the district court’s legal
conclusions de novo and its factual findings for clear error.”
United States v. Layton, 564 F.3d 330, 334 (4th Cir. 2009).
“[S]entencing judges may find facts relevant to determining a
Guidelines range by a preponderance of the evidence, so long as
that Guidelines sentence is treated as advisory and falls within
the statutory maximum authorized [by the jury's verdict].”
United States v. Alvarado Perez, 609 F.3d 609, 614 (4th Cir.
2010) (internal quotation marks omitted).
The district court in this case determined Whitfield’s
Guidelines range by first applying USSG § 2B3.1, which provides
the offense level for robbery. Section 2B3.1(c) directs a court
to apply a cross-reference to USSG § 2A1.1 “[i]f a victim was
killed under circumstances that would constitute murder under 18
U.S.C. § 1111.” The definition of first-degree murder includes
killings “committed in the perpetration of, or attempt to
perpetrate, any . . . burglary, or robbery.” 18 U.S.C. § 1111
(2012); see also United States v. Williams, 342 F.3d 350, 356
(4th Cir. 2003).
In support of his contention that the district court
miscalculated the applicable Guidelines range, Whitfield argues
that the court should not have applied USSG § 2B3.1’s cross-
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reference to the felony murder provision in USSG § 2A1.1. He
asserts that the district court applied an improper causation
standard in determining that he caused Parnell’s death.
At resentencing, the district court found by a
preponderance of the evidence presented at trial, including the
testimony of the Government’s expert witnesses, that Parnell’s
death was caused by Whitfield’s conduct. We cannot say, after
careful review of the record, that this finding is clearly
erroneous or that the district court committed legal error in
assessing the evidence. Therefore, Whitfield’s causation
argument entitles him to no relief.
Whitfield alternatively asserts that the district
court erred in concluding that the forced accompaniment, as
opposed to his mere presence, caused Parnell’s death. The
Guidelines, however, do not require that the forced
accompaniment directly cause the death; instead, USSG § 2A1.1 is
applicable because Parnell’s death occurred during the course of
Whitfield’s attempted robbery. See USSG § 2A1.1 cmt. n.1
(noting provision’s applicability “when death results from the
commission of certain felonies”). We therefore conclude that
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the district court did not err in applying the cross-reference
to USSG § 2A1.1 for Whitfield’s forced accompaniment conviction. ∗
Whitfield next contends that the district court
violated his Fifth and Sixth Amendment rights by resentencing
him on acquitted conduct. As Whitfield acknowledges, however,
this argument is foreclosed by our decision in United States v.
Young, 609 F.3d 348, 356 (4th Cir. 2010).
Finally, Whitfield argues that his 264-month sentence
exceeds the statutory maximum. In United States v. Turner, 389
F.3d 111, 121 (4th Cir. 2004), we interpreted § 2113(e) “to
permit a maximum sentence of life imprisonment” for forced
accompaniment convictions. We therefore conclude that this
argument lacks merit.
Accordingly, we affirm the district court’s judgment.
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
∗
Because we conclude that the district court did not err in
resentencing Whitfield, we reject his arguments that he should
be resentenced on his other convictions and that he should be
resentenced by a different district court judge.
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